[EL] ELB News and Commentary 12/13/20

[Rick Hasen]

Expect a Final Dramatic Flourish From Wisconsin Before Electoral College Meets Monday as WI Supreme Court Ruling Looms (It Won’t Affect the Overall Election Outcome)<https://electionlawblog.org/?p=119621>
Posted on December 13, 2020 5:19 pm<https://electionlawblog.org/?p=119621> by Rick Hasen<https://electionlawblog.org/?author=3>

Yesterday<https://electionlawblog.org/?p=119579> the Wisconsin Supreme Court held a heated oral argument over Trump’s election contest. The arguments were at noon and heated, and now, less than 17 hours<https://twitter.com/patrickdmarley/status/1338289910831329282> before the electoral college meets, there is not yet a decision.

The Court will almost certainly be divided as it was last time, and Justice Hagedorn, a conservative, could well be the decisive vote.

Wisconsin is the only state that will be outside the safe harbor because of this ongoing legislation. I do not know what the Court will do, but even in the very unlikely event they ordered some change to the electoral college votes for Biden in this election, there are not enough votes at stake to affect the outcome of the election.

But this continued churn of litigation, in the face of no evidence of widespread fraud or irregularities, remains troubling, up till the very vote of the Electoral College delegations on Monday.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“A Stunning Passage from the Latest Court Rejection of Team Trump”<https://electionlawblog.org/?p=119619>
Posted on December 13, 2020 5:09 pm<https://electionlawblog.org/?p=119619> by Rick Hasen<https://electionlawblog.org/?author=3>

Andrew McCarthy<https://www.nationalreview.com/2020/12/a-stunning-passage-from-the-latest-court-rejection-of-team-trump/> at National Review:

The most telling aspect of the Wisconsin federal district court’s rejection<https://apnews.com/article/election-2020-joe-biden-donald-trump-madison-wisconsin-e911b00569c4a3214691ecb7b84e8330> of another Trump campaign lawsuit on Saturday is so obvious it is easy to miss. And no, it is not that the rejecting was done by a Trump-appointed judge<https://www.nationalreview.com/2020/12/the-glory-of-trumps-judges/>, Brett H. Ludwig, or that it was done on the merits.

With the Electoral College meeting just days away, the Court declined to address the issues in piecemeal fashion and instead provided plaintiff with an expedited hearing on the merits of his claims. On the morning of the hearing, the parties reached agreement on a stipulated set of facts and then presented arguments to the Court.

A “stipulated set of facts,” in this context, is an agreement between the lawyers for the adversary parties about what testimony witnesses would give, and/or what facts would be established, if the parties went through the process of calling witnesses and offering tangible evidence at a hearing or trial.

In a real controversy, in which one or both of the parties are making hotly disputed factual claims, there are few if any stipulations. For example, a defendant who vehemently denies that he committed stock fraud may be willing to stipulate that 20,000 shares of XYZ Corp’s common stock were sold on December 14; but other than that, the defendant will demand that the adversary call the fact witnesses who claim he defrauded them so he can cross-examine. He will call his own witnesses to show what really happened, and they will be aggressively questioned, too….
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Why isn’t Mike Pence listed as a party in some of Donald Trump’s post-election lawsuits?”<https://electionlawblog.org/?p=119617>
Posted on December 13, 2020 5:06 pm<https://electionlawblog.org/?p=119617> by Rick Hasen<https://electionlawblog.org/?author=3>

Derek Muller:<https://excessofdemocracy.com/blog/2020/12/why-isnt-mike-pence-listed-as-a-party-in-some-of-donald-trumps-post-election-lawsuits>

I noticed that when President Donald Trump filed a motion to intervene in Texas v. Pennsylvania<https://www.supremecourt.gov/search.aspx?filename=%2Fdocket%2Fdocketfiles%2Fhtml%2Fpublic%2F22o155.html> before the Supreme Court of the United States, Vice President Mike Pence was not listed as a co-intervenor. I then saw in the Wisconsin federal district court litigation that Trump v. Wisconsin Election Commission<https://www.courtlistener.com/docket/18710035/v-the-wisconsin-elections-commission/> does not include Mr. Pence, either. Maybe there are more.

Several lawsuits are raised by electors, voters, or public interest organizations. Others are from the Donald J. Trump for President, Inc. campaign entity itself. And Mr. Pence is sometimes listed as a party in some such litigation (like the Wisconsin recount petition<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/Recount-Petition_President_2020.pdf>).

But looking back to, say, Bush v. Gore<https://perma.cc/6LG5-N95H>, we see that it’s not simply George W. Bush named as a party, but also his vice presidential candidate Richard Cheney; and it’s not simply Albert Gore, Jr. named as a party, but also his vice presidential candidate Joseph I. Lieberman.

One would expect that litigation of individual candidates on a presidential ticket would include both the presidential and vice presidential candidates. But these two cases, at least, indicate, I think, some daylight between Mr. Trump’s litigation interests and Mr. Pence’s.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“CBS News poll: Most feel election is “settled” but Trump voters disagree”<https://electionlawblog.org/?p=119615>
Posted on December 13, 2020 5:05 pm<https://electionlawblog.org/?p=119615> by Rick Hasen<https://electionlawblog.org/?author=3>

CBS News reports.<https://www.cbsnews.com/news/cbs-news-poll-most-feel-election-is-settled-but-trump-voters-disagree/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Liberals Were Right to Fear the Supreme Court’s Election Intervention”<https://electionlawblog.org/?p=119613>
Posted on December 13, 2020 5:02 pm<https://electionlawblog.org/?p=119613> by Rick Hasen<https://electionlawblog.org/?author=3>

Jay Willis<https://www.theatlantic.com/ideas/archive/2020/12/scotus-texas-trump/617376/> in The Atlantic.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Multiple people stabbed after thousands gather for pro-Trump demonstrations in Washington”<https://electionlawblog.org/?p=119611>
Posted on December 13, 2020 5:01 pm<https://electionlawblog.org/?p=119611> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/local/trump-dc-rally-maga/2020/12/11/8b5af818-3bdb-11eb-bc68-96af0daae728_story.html>

Thousands of maskless rallygoers who refuse to accept the results of the election turned downtown Washington into a falsehood-filled spectacle Saturday, two days before the electoral college will make the president’s loss official.

In smaller numbers than their gathering last month<https://www.washingtonpost.com/dc-md-va/2020/11/14/million-maga-march-dc-protests/?itid=lk_inline_manual_4>, they roamed from the Capitol to the Mall and back again, seeking inspiration from speakers who railed against the Supreme Court, Fox News and President-elect Joe Biden. The crowds cheered for recently pardoned former national security adviser Michael Flynn, marched with conspiracy theorist Alex Jones and stood in awe of a flyover from what appeared to be Marine One.

But at night, the scene became violent. At least four people were stabbed near Harry’s Bar at 11th and F streets NW, a gathering point for the Proud Boys, a male-chauvinist organization with ties to white nationalism.

The victims were hospitalized and suffered possibly life-threatening injuries, D.C. fire spokesman Doug Buchanan said. It was not immediately clear with which groups the attackers or the injured might have been affiliated.

The violence escalated after an evening of faceoffs with counterprotesters that took place near Harry’s, Black Lives Matter Plaza, Franklin Square, and other spots around downtown.

At first, officers in riot gear successfully kept the two sides apart, even as the groups splintered and roamed. In helmets and bulletproof vests, Proud Boys marched through downtown in militarylike rows, shouting “move out” and “1776!” They became increasingly angry as they wove through streets and alleys, only to find police continuously blocking their course with lines of bikes.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Trump Allies Eye Long-Shot Election Reversal in Congress, Testing Pence; Some House Republicans plan to try to use Congress’s tallying of electoral results on Jan. 6 to tip the election to President Trump. The attempt will put Republicans in a pinch.”<https://electionlawblog.org/?p=119609>
Posted on December 13, 2020 4:58 pm<https://electionlawblog.org/?p=119609> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/12/13/us/politics/trump-allies-election-overturn-congress-pence.html>

Even if a senator did agree, constitutional scholars say the process is intended to be an arduous one. Once an objection is heard from a member of each house of Congress, senators and representatives will retreat to their chambers on opposite sides of the Capitol for a two-hour debate and then a vote on whether to disqualify a state’s votes. Both the Democratic-controlled House and Republican-controlled Senate would have to agree to toss out a state’s electoral votes — something that has not happened since the 19th century.

Several Senate Republicans — including Patrick J. Toomey of Pennsylvania, Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah — have forcefully rejected the idea of overturning the results, and their votes would be enough for Mr. Biden to prevail with the support of Democrats.

“The Jan. 6 meeting is going to confirm that regardless of how many objections get filed and who signs on, they are not going to affect the outcome of the process,” said Edward B. Foley, a constitutional law professor at Ohio State University who has written extensively on the electoral process. “We can say that with clear confidence.”

But he noted that the session could still carry consequences for the next few years. If even one Republican senator backed the effort, it could ensure that the partisan cloud hanging over the election would darken Mr. Biden’s presidency for years to come. If none did, it could send a definitive message to the country that despite Mr. Trump’s bluster, the party trusted the results of the electoral process and was finally ready to recognize Mr. Biden as the rightful winner.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, electoral college<https://electionlawblog.org/?cat=44>


“The Electoral College Is Voting Tomorrow. Here’s What to Expect.”<https://electionlawblog.org/?p=119607>
Posted on December 13, 2020 4:55 pm<https://electionlawblog.org/?p=119607> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/12/13/us/politics/electoral-college.html> reports.
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Posted in electoral college<https://electionlawblog.org/?cat=44>


“Republicans Find Themselves Speechless Following a Supreme Court Defeat”<https://electionlawblog.org/?p=119603>
Posted on December 13, 2020 4:53 pm<https://electionlawblog.org/?p=119603> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/12/12/us/politics/republicans-trump-supreme-court-.html>:

A day after President Trump’s stinging defeat in the Supreme Court, Republicans around the country seemed to be having trouble finding the right words.

The bellicose statements from some quarters that had characterized the postelection period — claims of switched and missing votes, a “rigged” election and even threats of secession from Texas Republicans after the ruling on Friday — had given way to something resembling muted resignation and an acceptance of the inevitable.

Many were completely silent, even in the face of a tweet<https://twitter.com/realDonaldTrump/status/1337755964339081216?s=20> from Mr. Trump himself in which he vowed, “WE HAVE JUST BEGUN TO FIGHT!!”

Of 17 Republican attorneys general<https://www.nytimes.com/2020/12/09/us/politics/trump-texas-supreme-court-lawsuit.html> who had endorsed the case, filed by Texas Attorney General Ken Paxton, none agreed to be interviewed by The New York Times. Mr. Paxton, who had issued a statement calling the decision “unfortunate<https://www.texasattorneygeneral.gov/news/releases/ag-paxton-us-supreme-court-refuses-determine-integrity-2020-election>,” did not respond to a request for comment.

Other attorneys general who issued statements mostly seemed to acknowledge that all legal avenues had been exhausted in efforts to overturn the election results.

Mike Hunter, the Oklahoma attorney general, saw the end of the road.

“The Supreme Court has ruled. The Electoral College is going to meet Monday. We’ve got to accept the results,” Mr. Hunter said in a Facebook interview<https://www.facebook.com/194730097213605/posts/3876894688997109/?d=n> in Oklahoma City. “We need to play the hand we’re dealt.”

A statement by Wayne Stenehjem, the North Dakota attorney general, echoed that. “It now appears that all reasonably arguable legal challenges have been exhausted, and the members of the Electoral College will meet across the country on Monday.”

Derek Schmidt, the Kansas attorney general, summed it up with a statement<https://ag.ks.gov/media-center/news-releases/2020/12/12/ag-derek-schmidt-statement-on-u.s.-supreme-court-declining-to-hear-texas-lawsuit-challenging-election-procedures-in-four-states> saying, “It is time to put this election behind us.”

Arkansas Governor Asa Hutchinson, a Republican who had disagreed with the decision by his state’s attorney general to join the case, said there was no viable path forward for Mr. Trump.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


True the Vote Email Suggests Intrigue Over Dropping Election Disputes in 4 States (Now Subject to Litigation), Hints at Potential Violence to Come<https://electionlawblog.org/?p=119599>
Posted on December 13, 2020 4:51 pm<https://electionlawblog.org/?p=119599> by Rick Hasen<https://electionlawblog.org/?author=3>

In light of this lawsuit<https://electionlawblog.org/?p=119080> against True the Vote, I found this part of a new email interesting:
[cid:image002.png at 01D6D174.473D75B0]

It also contains this ominous description of the rioting by Proud Boys on Saturday night in DC following what the head of True the Vote described as a day in DC protesting the election: The day was amazing, full of prayer, patriotism, and positive-vibes. People are committed to this battle. And that’s what we need because restoring election integrity will be neither quick nor easy:”
[cid:image003.png at 01D6D174.473D75B0]
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“It’s over. When the electoral college announces Biden’s win, Republicans must move on.”<https://electionlawblog.org/?p=119597>
Posted on December 13, 2020 4:43 pm<https://electionlawblog.org/?p=119597> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley WaPo oped:<https://www.washingtonpost.com/opinions/2020/12/13/its-over-when-electoral-college-announces-joe-bidens-win-congressional-republicans-should-move/>

It’s over. At that point, the outcome can’t be changed. New electors can’t be appointed in any state, by legislatures or any other means. No time machine exists to undo the meetings of each state’s electors that already have occurred.

There is nothing for Congress to do except to accept that Biden has won based on a majority of the electoral college ballots cast on Monday.

Of course, Congress still must receive and count these electoral college votes and formally pronounce Biden the winner, in a special joint session on Jan. 6. But that will be a mere formality. No officially sanctioned slates of rival electors — from state legislatures, as previously feared<https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/> (and urged by President Trump<https://www.politico.com/news/2020/11/21/trump-state-legislatures-overturn-election-results-439031>), for example — exist for Congress to decide between. Republican senators can go ahead now and publicly acknowledge the result.

Indeed, the delay between the electoral college vote and congressional announcement of that result is a relic of the 19th century, with its slower methods of transportation and communication. After the electoral college has elected Biden president, there is no reason — other than sheer obstinacy or reality-denialism — to withhold public recognition of Biden’s victory.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, electoral college<https://electionlawblog.org/?cat=44>


“Why Trump’s lawsuit seeking to overturn Nevada’s presidential race sputtered in court”<https://electionlawblog.org/?p=119595>
Posted on December 13, 2020 4:19 pm<https://electionlawblog.org/?p=119595> by Rick Hasen<https://electionlawblog.org/?author=3>

Nevada Independent reports.<https://thenevadaindependent.com/article/why-trumps-lawsuit-seeking-to-overturn-nevadas-presidential-race-sputtered-in-court>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Michigan electors need an armed escort for the journey to the State Capitol to cast their ballots for Joe Biden as angry pro-Trump supporters plan protests”<https://electionlawblog.org/?p=119593>
Posted on December 13, 2020 4:17 pm<https://electionlawblog.org/?p=119593> by Rick Hasen<https://electionlawblog.org/?author=3>

Business Insider reports.<https://www.yahoo.com/news/michigan-electors-armed-escort-journey-122632323.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


The WI District Court’s Important Decision on the Independent State Legislature Issue<https://electionlawblog.org/?p=119590>
Posted on December 13, 2020 10:16 am<https://electionlawblog.org/?p=119590> by Richard Pildes<https://electionlawblog.org/?author=7>

I know it can be difficult to believe important legal issues are being resolved in some of this last flurry of cases, but they are. Yesterday’s federal district court decision in WI in Trump v. The Wisconsin Election Commission is an important decision on several aspects of the so-called “independent state legislature” (ISL) debates.

I want to highlight those issues. I also want to comment that, while we are fully aware of the courts uniformly rejecting the lawsuits the Trump campaign and its allies have brought, we have not said as much about the impressively high quality of many these opinions, particularly given the extraordinary time pressures under which they have been produced.

              This decision was written by Judge Brett H. Ludwig, a Trump appointee just confirmed in September.  These are the important issues his opinion addresses and how he resolved them:
1.        Standing to Bring Claims under the Electors Clause.  There are uncertainties about who has standing to raise a claim under this clause.  Some believe only state legislatures should have standing, since the clause protects the power to state legislatures.  Yesterday’s opinion rejects this view and concludes that candidates have standing to claim the Electors Clause has been violated, because they have a legally recognizable and particularized injury if they are harmed by a violation.  This holding is consistent with the positions of the Eighth and Eleventh Circuits on this issue.
·         Does the ISL Apply to the Way State Election Officials Administer the Election?  This might be the most interesting aspect of the decision.  The Electors Clause empowers state legislatures to decide “the manner” in which a state chooses its presidential electors.  All states, of course, have decided to use popular elections to do so.  But what is the scope of this power to choose the “manner” of selection?

The court concludes that “manner” means the basic mode of selection – whether to hold an election, or appoint the electors directly (as state legislatures did early on).  But the court concludes that the issue of how election officials administer the laws creating the popular election is not within the scope of the Electors Clause.  These administrative matters do not involve the “manner” of choosing the electors, but details of administration.  The court’s position on this is based on a textualist reading of the Electors Clause and is important:

“If plaintiff’s reading of “Manner” was correct, any disappointed loser in a Presidential election, able to hire a team of clever lawyers, could flag claimed deviations from the election rules and cast doubt on the election results. This would risk turning every Presidential election into a federal court lawsuit over the Electors Clause. Such an expansive reading of “Manner” is thus contrary both to the plain meaning of the Constitutional text and common sense.”
·         Even if The Electors Clause Includes Election Administration, is the Clause Satisfied When Election Administrators Have Been Delegated Authority by the State Legislature? The court hold that if the clause includes election administration, it also encompasses the legislature’s choice to empower election officials to perform the roles they performed in WI (this principle would likely extend to election administration in most states).  So if election administrators have been directly empowered by state legislation to implement the election laws, their decisions are consistent with the Electors Clause.
·         Even if A Court Were to Disagree with These Prior Conclusions, Under What Circumstances Does Election Administration Violate the Electors Clause?  Finally, the court concludes that even if the Electors Clause includes election administration, the mere fact that election officials have resolved disputed issues of statutory construction does not amount to a violation.  Instead, only “significant departures” from the election code would violate the clause.
·         The Trump Campaign’s Claims “Fail On Their Merits.”   I mention this because the President has recently taken to complaining that the courts are not resolving his campaign’s claims on the merits.  The court here could have declined to reach the merits, given its holdings on issues 2. and 3. above.  But instead, the court did go on to address the merits and reject the claims.

As the court said in conclusion:  “This Court has allowed plaintiff the chance to make his case and he has lost on the merits.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>



--
Rick Hasen
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UC Irvine School of Law
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