[EL] Supreme Court rules in Census case; ELB News and Commentary 12/18/20

[Rick Hasen]

Breaking: Supreme Court, on 6-3 Vote, Ducks Census Ruling, Holding There is No Standing and Remanding for Further Proceedings; What It Means<https://electionlawblog.org/?p=119768>
Posted on December 18, 2020 7:03 am<https://electionlawblog.org/?p=119768> by Rick Hasen<https://electionlawblog.org/?author=3>

In an unsigned (per curiam) order over 3 dissents, the Supreme Court has bounced a case back to a lower court that challenged a Trump Administration plan to exclude certain non-citizens from the census count used to apportion seats among the states. The Administration planned to do so despite unambiguous constitutional language requiring that all “persons” in the U.S. be counted for these purposes.

From the majority opinion explaining the lack of standing:

At present, this case is riddled with contingencies and speculation that impede judicial review. The President, to be sure, has made clear his desire to exclude aliens without lawful status from the apportionment base. But the President qualified his directive by providing that the Secretary should gather information “to the extent practicable” and that aliens should be excluded “to the extent feasible.” 85 Fed. Reg. 44680. Any prediction how the Executive Branch might eventually implement this general statement of policy is “no more than conjecture” at this time. Los Angeles v. Lyons, 461 U. S. 95, 108 (1983).

The Court also found a ripeness problem:

The remedy crafted by the District Court underscores the contingent nature of the plaintiffs’ injuries. Its injunction prohibits the Secretary from informing the President in his §141(b) report of the number of aliens without lawful status. In addition to implicating the President’s authority under the Opinions Clause, U. S. Const., Art. II, §2, cl. 1, the injunction reveals that the source of any injury to the plaintiffs is the action that the Secretary or President might take in the future to exclude unspecified individuals from the apportionment base—not the policy itself “in the abstract,” Summers v. Earth Island Institute, 555 U. S. 488, 494 (2009). Letting the Executive Branch’s decisionmaking process run its course not only brings “more manageable proportions” to the scope of the parties’ dispute, Lujan v. National Wildlife Federation, 497 U. S. 871, 891 (1990), but also “ensures that we act as judges, and do not engage in policymaking properly left to elected representatives,” Hollingsworth v. Perry, 570 U. S. 693, 700 (2013). And in the meantime the plaintiffs suffer no concrete harm from the challenged policy itself, which does not require them “to do anything or to refrain from doing anything.” Ohio Forestry Assn., Inc. v. Sierra Club, 523 U. S. 726, 733 (1998).

This ruling<https://www.supremecourt.gov/opinions/20pdf/20-366_7647.pdf> will likely render the case moot, as the Trump administration likely misses the deadline for submitting alternative apportionment numbers before Trump’s term ends. If it doesn’t, the case will be back in short order before the Court arguing against the numbers. The Court majority expressed no view on the merits, but there could well be at least 2 Justices who agree with the substantive position of the dissenters that what the Administration plans to do is unconstitutional.

The three liberal Justices dissented. They would have reached the merits and not allowed any kind of apportionment that excluded persons in the U.S., including certain non-citizens. From the dissent:

To repeat, the President’s stated goal is to reduce the number of Representatives apportioned to the States that are home to a disproportionate number of aliens without lawful status. The Government has confirmed that it can identify millions of these people through administrative records. But if the Census Bureau fails to fulfill its mandate to exclude aliens without lawful status and reduce the number of Representatives to which certain States are entitled, it will be for reasons not in the record. Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed.

[This post has been updated.]
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


Two Lawsuits Seeking to Make Voting Harder in Georgia Runoffs Dismissed for Lack of Standing<https://electionlawblog.org/?p=119764>
Posted on December 17, 2020 5:32 pm<https://electionlawblog.org/?p=119764> by Rick Hasen<https://electionlawblog.org/?author=3>

See here<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/12/12th-Congressional-District-Order.pdf> and here<https://lawandcrime.com/2020-election/second-federal-judge-in-one-day-dismisses-georgia-gop-attack-on-absentee-voting-in-senate-runoffs/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Watch Ned Foley at the Robert H. Jackson Center Talking About Our Most Recent Election and the Electoral College<https://electionlawblog.org/?p=119762>
Posted on December 17, 2020 5:22 pm<https://electionlawblog.org/?p=119762> by Rick Hasen<https://electionlawblog.org/?author=3>

Archived video.<https://www.youtube.com/watch?v=r02KaQGxaWo&feature=youtu.be>
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, electoral college<https://electionlawblog.org/?cat=44>


Antrim, Michigan Hand Recount Confirms Accuracy of Machine Recount, with 12-Vote Gain for Trump<https://electionlawblog.org/?p=119760>
Posted on December 17, 2020 2:02 pm<https://electionlawblog.org/?p=119760> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News:<https://www.detroitnews.com/story/news/local/michigan/2020/12/17/antrim-county-audit-shows-12-vote-gain-trump/3938988001/>

An audit of Antrim County election results Thursday gave President Donald Trump a net gain of 12 votes from the certified results in the northern Michigan county.

Democratic presidential candidate Joe Biden’s total decreased by one vote, from 5,960 to 5,959, while Trump’s increased 11 votes, from 9,748 to 9,759, according to preliminary results from the county’s more than 7-hour, livestreamed audit. Biden won the state of Michigan by more than 154,000 votes on Nov. 3, according to certified results.

Third-party presidential candidates in Antrim County were off by zero to one vote compared with certified results.

“This is very typical of what we find in a hand-count of ballots,” said Lori Bourbonais, with the Michigan Department of State. “It is normal to find one or two votes in a precinct that differ between a hand tally and machine count.”

The reliably Republican County has been the center of controversy in the weeks since the election after initial results posted in the early morning hours of Nov. 4 showed Biden ahead of Trump by thousands of votes. Election officials later determined a clerk’s failure to properly update software had resulted in transposed results and Trump actually won the county by more than 3,700 votes. Your stories live here.Fuel your hometown passion and plug into the stories that define it.

But the error triggered a series of unproven fraud allegations regarding Dominion Voting Systems, which Antrim County and 47 other Michigan counties use in elections.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>, recounts<https://electionlawblog.org/?cat=50>, voting technology<https://electionlawblog.org/?cat=40>


“76K new Georgia voters registered before US Senate runoffs”<https://electionlawblog.org/?p=119758>
Posted on December 17, 2020 12:40 pm<https://electionlawblog.org/?p=119758> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC reports.<https://www.ajc.com/politics/75k-new-georgia-voters-registered-before-us-senate-runoffs/H3CXAFIKFVCKHJNW5MBFZKQDZU/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Illinois Appellate Court Rejects First Amendment Challenge to State Ballot Selfie Ban<https://electionlawblog.org/?p=119756>
Posted on December 17, 2020 12:38 pm<https://electionlawblog.org/?p=119756> by Rick Hasen<https://electionlawblog.org/?author=3>

Here.<https://courts.illinois.gov/Opinions/AppellateCourt/2020/5thDistrict/5190306.pdf>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Watch Archived Video of BPC Election Post-Mortem Event<https://electionlawblog.org/?p=119754>
Posted on December 17, 2020 12:36 pm<https://electionlawblog.org/?p=119754> by Rick Hasen<https://electionlawblog.org/?author=3>

Here<https://www.youtube.com/watch?v=s095eE74c84> at YouTube.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Trevor Potter: “No, Jan. 6 isn’t another chance for Trump to reverse the election”<https://electionlawblog.org/?p=119752>
Posted on December 17, 2020 12:33 pm<https://electionlawblog.org/?p=119752> by Rick Hasen<https://electionlawblog.org/?author=3>

Trevor Potter<https://www.washingtonpost.com/outlook/2020/12/17/january-6-congress-count-trump/> in WaPo:

What will happen then — a joint session of Congress to receive the presidential and vice-presidential election results transmitted by the states — typically occurs every four years in relative obscurity. But this election cycle has been anything but typical. While there’s no realistic chance of anything happening Jan. 6 to disrupt the peaceful transfer of power consistent with the will of America’s voters and Monday’s electoral college votes, there is still a good chance Trump will try to make the day a super spreader event for the election disinformation with which he is relentlessly trying to infect American democracy.

Foreknowledge is, however, a form of inoculation here. By understanding exactly what does and doesn’t happen Jan. 6, all of us can contribute to making that day a reaffirmation of our democratic process rather than part of a continued assault on it.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Dominion demands that Sidney Powell retract ‘baseless and false allegations’ about voting machines.”<https://electionlawblog.org/?p=119750>
Posted on December 17, 2020 12:31 pm<https://electionlawblog.org/?p=119750> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/12/17/us/dominion-demands-that-sidney-powell-retract-baseless-and-false-allegations-about-voting-machines.html>

Dominion Voting Systems sent a blistering lette<https://onedrive.live.com/?authkey=%21APYmtQW5u7%2DOygg&cid=477107F019583E73&id=477107F019583E73%21814&parId=root&o=OneUp>r on Wednesday night to the right-wing lawyer Sidney Powell,<https://www.nytimes.com/article/who-is-sidney-powell.html> demanding that she publicly retract her “wild, knowingly baseless and false accusations” about the company’s voting machines, which have repeatedly found themselves at the heart of conspiracy theories surrounding the election.

The letter, a preparatory step to formal legal action, accused Ms. Powell of engaging in “reckless disinformation” about Dominion’s machines at news conferences, rallies in support of President Trump and on conservative media outlets like Fox News, Newsmax and Rush Limbaugh’s radio show.

Ms. Powell has also filed unsuccessful federal lawsuits seeking to overturn the election in four key swing states, lodging claims that were “predicated on lies,” the letter says, and that have “endangered Dominion’s business and the lives of its employees.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“GOP launches legal war on absentee voting ahead of Georgia runoffs”<https://electionlawblog.org/?p=119747>
Posted on December 17, 2020 12:26 pm<https://electionlawblog.org/?p=119747> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/12/17/gop-legal-war-absentee-voting-georgia-runoffs-447266>

Federal judges in Georgia will hear arguments Thursday in Republican-led lawsuits to restrict absentee voting ahead of next month’s Senate runoffs — the first salvos in a GOP effort to change voting rules for future elections following President Donald Trump’s loss in 2020.

Republicans have filed three lawsuits in the state ahead of the Jan. 5 runoffs, in which hundreds of thousands of people have already voted by mail or in person for races that will decide control of the Senate in 2021. The suits primarily target the use of drop-boxes to return absentee ballots, as well as aiming to raise the threshold for signature verifiers to accept absentee ballots.

The net result of the suits, which are backed by a combination of local, state and national Republican Party organizations, would make successfully voting by mail harder in Georgia, which Republicans say is necessary to protect the security of the elections — and others claim is an attempt to suppress votes for Democratic candidates.

The legal efforts are likely just the start of a yearlong push by state Republicans to tighten voting rules in response to the 2020 election, which prompted unsubstantiated claims of widespread fraud from Trump, his supporters and other GOP leaders who are convinced that the contest wasn’t fair. Republican lawmakers in Georgia, Michigan and Pennsylvania, among others, have already announced their intention to seek changes to state election laws next year in response to perceived irregularities, and Trump’s opposition to mail voting in 2020 — coupled with the way those late-counted ballots broke against him in some key states — has destroyed the decades-long bipartisan consensus on expanding the practice.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Michigan: “Benson refuses to testify at House hearing, says committee ‘wounding our democracy'”<https://electionlawblog.org/?p=119745>
Posted on December 17, 2020 12:23 pm<https://electionlawblog.org/?p=119745> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit Free Press:<https://www.freep.com/story/news/politics/elections/2020/12/16/benson-refuses-testify-house-says-committee-wounding-our-democracy/3922176001/>

Michigan Secretary of State Jocelyn Benson has refused an invitation to testify before a House legislative committee, arguing the committee’s previous hearings with Rudy Giuliani <https://www.freep.com/story/news/politics/elections/2020/12/02/giuliani-hearing-allegations-no-evidence-election-fraud/3795651001/> and others show lawmakers are focused more on politics and undermining election<https://www.freep.com/story/news/local/michigan/detroit/2020/12/02/trump-giuliani-peddle-baseless-election-conspiracies/3793201001/> integrity than on earnest reforms<https://www.freep.com/story/news/politics/elections/2020/12/08/detroit-elections-fraud-misconduct-allegations-senate-hearing/6489804002/>.

On Wednesday, Benson tweeted a copy<https://twitter.com/JocelynBenson/status/1339233330580123648?s=20> of the letter sent to House Oversight Committee Chairman Matt Hall, R-Emmett Township. In a statement Wednesday, Hall said Benson was “playing cheap political games.”
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Will Tommy Tuberville back Mo Brooks in overturning Electoral College decision?”<https://electionlawblog.org/?p=119743>
Posted on December 17, 2020 12:10 pm<https://electionlawblog.org/?p=119743> by Rick Hasen<https://electionlawblog.org/?author=3>

AL.com<https://www.al.com/news/2020/12/will-tommy-tuberville-back-mo-brooks-in-overturning-electoral-college-decision.html>:

U.S. Rep. Mo Brooks’ pursuit to overturn the presidential election results by tossing out Electoral College votes in key battleground states will require at least one Senator to be successful when the new Congress convenes on January 6.

Veteran Republican Senators Ted Cruz of Texas <https://thehill.com/homenews/senate/529559-trump-asks-cruz-to-argue-texas-case> and Rand Paul of Kentucky <https://thehill.com/homenews/senate/530492-rand-paul-claims-election-in-many-ways-was-stolen-during-krebs-hearing> have been named by national media outlets as possible allies. Senator Josh Hawley of Missouri<https://www.newsweek.com/senate-republicans-consider-challenging-joe-bidens-win-despite-mitch-mcconnells-warning-1555345> said he was undecided on the matter Wednesday.

And another name floated in recent days: Senate-elect Tommy Tuberville of Alabama.

But unlike Cruz, Paul and Hawley – among others – Tuberville is a rookie senator who will be sworn into office on January 3, a mere three days before Congress meets to ratify the Electoral College’s decision on Monday that awarded the presidency to Joe Biden.

If Tuberville is the sole senator backing Brooks, it would also place the former Auburn University head football coach at odds with Senate Majority Leader Mitch McConnell, who congratulated Biden on Monday<https://www.al.com/news/2020/12/mitch-mcconnell-congratulates-president-elect-joe-biden.html> and – according to national news accounts – is warning fellow Republicans not to challenge the election results.<https://www.wsj.com/articles/mcconnell-congratulates-biden-harris-on-election-win-11608048087>
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Posted in 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://electionlawblog.org<http://electionlawblog.org/>



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