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

[Rick Hasen]

Quote of the Day (Conservative Wisconsin Supreme Court Justice Brian Hagedorn)<https://electionlawblog.org/?p=119807>
Posted on December 20, 2020 12:26 pm<https://electionlawblog.org/?p=119807> by Rick Hasen<https://electionlawblog.org/?author=3>

In interview <https://www.nytimes.com/2020/12/20/us/politics/wisconsin-justice-brian-hagedorn.html> with the NY Times about his vote in the Wisconsin election case:

Yes, I’ve been called a traitor. I’ve been called a liar. I’ve been called a fraud. I’ve been asked if I’m being paid off by the Chinese Communist Party. I’ve been told I might be tried for treason by a military tribunal. Sure, I’ve gotten lots of interesting and sometimes dark messages.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump says he spoke with Sen.-elect Tuberville, who has hinted at backing electoral college challenge next month”<https://electionlawblog.org/?p=119805>
Posted on December 20, 2020 12:21 pm<https://electionlawblog.org/?p=119805> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/tuberville-electoral-challenge-trump-conversation/2020/12/20/1658573e-42db-11eb-b0e4-0f182923a025_story.html>

President Trump said Sunday that he has spoken with Sen.-elect Tommy Tuberville, the Alabama Republican who suggested last week that he supports a potential challenge to the electoral vote count when the House and Senate convene next month to formally affirm President-elect Joe Biden’s victory.

Trump said in an interview<https://twitter.com/77WABCradio/status/1340686591673724931?s=20> with Rudolph W. Giuliani, his personal lawyer, on New York’s WABC radio station that he spoke with Tuberville Saturday night.

Tuberville’s campaign did not immediately respond to a request for comment.

The conversation is the latest signal that Trump is exerting pressure on Republicans to overturn the results of November’s presidential election….

The effort is certain to fail in the Democratic-led House and will meet resistance in the Senate, where several Republicans, including Senate Majority Leader Mitch McConnell (R-Ky.), have dismissed the idea. Both chambers would have to vote in favor of any challenge for it to succeed.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Trump Campaign Files Ridiculous New Expedited Cert Petition, Seeking Supreme Court Order to Overturn PA Election Results, Relying on Fake Electors for Trump from PA as Reported by the Epoch Times<https://electionlawblog.org/?p=119802>
Posted on December 20, 2020 12:03 pm<https://electionlawblog.org/?p=119802> by Rick Hasen<https://electionlawblog.org/?author=3>

John Eastman should be ashamed of this petition<https://cdn.donaldjtrump.com/public-files/press_assets/trump-v-boockvar-petition.pdf> for cert and motion to expedite<https://cdn.donaldjtrump.com/public-files/press_assets/trump-v-boockvar-motion.pdf>.

I won’t go through all of the ridiculous things here, but this is an attempt to challenge PA Supreme Court cases in October and mid-November. There is absolutely no excuse to have waited this long, and to have tried to sue after the electoral college slates voted.

And no, a group of people getting together and calling themselves “electors” without any state authority to do so are not electors. The citation to the Epoch Times in support of the choice of the alternative slate made me laugh out loud.

Update: Josh Douglas flagged for me some very concerning language about “disruption” in the motion to expedite:

“Finally, if this matter is not timely resolved, not only Petitioner, but the Nation as а whole may suffer injury from the resulting confusion. Indeed, the intense national and worldwide attention on the 2020 Presidential election only foreshadows the disruption that may well follow if the uncertainty and unfairness shrouding this election are allowed to persist. The importance of а prompt resolution of the federal constitutional questions presented by this case cannot be overstated.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, electoral college<https://electionlawblog.org/?cat=44>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>, Supreme Court<https://electionlawblog.org/?cat=29>


Michael Malbin Retires After 21 Years as Director of the Campaign Finance Institute<https://electionlawblog.org/?p=119799>
Posted on December 20, 2020 10:02 am<https://electionlawblog.org/?p=119799> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Malbin has been one of the most important and careful scholars tracking empirical developments in campaign finance as a professor at SUNY Albany and for 21 years as director of the influential Campaign Finance Institute<http://cfinst.org/>. I rely on CFI analyses in my own work all the time. Michael has just retired as CFI director.

CFI became a division of the National Institute on Money in Politics <https://www.followthemoney.org/> in 2018. Michael became a member of NIMP’s board on Friday. He will continue teaching at the University at Albany. Brendan Glavin will be staying on at CFI/NIMP.

Congratulations Michael!
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, election law biz<https://electionlawblog.org/?cat=51>


“2020’s Lessons for Election Security”<https://electionlawblog.org/?p=119797>
Posted on December 20, 2020 9:54 am<https://electionlawblog.org/?p=119797> by Rick Hasen<https://electionlawblog.org/?author=3>

Important analysis<https://www.brennancenter.org/our-work/research-reports/2020s-lessons-election-security> from the Brennan Center.
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Posted in voting technology<https://electionlawblog.org/?cat=40>


Brook Thomas: “Rule by Law Under a Flawed System to Elect a President”<https://electionlawblog.org/?p=119795>
Posted on December 20, 2020 9:28 am<https://electionlawblog.org/?p=119795> by Rick Hasen<https://electionlawblog.org/?author=3>

In the Dec 18, 2020, New Yorker, Steve Coll notes<https://www.newyorker.com/news/daily-comment/the-outdated-law-that-republicans-could-use-to-upend-the-electoral-college-vote-next-time?utm_source=nl&utm_brand=tny&utm_mailing=TNY_Daily_121820&utm_campaign=aud-dev&utm_medium=email&bxid=5bea0bed2ddf9c72dc8d2bc4&cndid=44213519&hasha=597db21bf3da09853d6cc05661526bdf&hashb=3f8665be0edbfa594b60dd575b00e09dfc3b0158&hashc=c654999de45334fec4ec14e2e19add53ef4e47043320b725adaa3791faabeae5&esrc=bounceX&utm_term=TNY_Daily> that the outdated 1887 Law of Electoral Count enables Trump’s allies to create more havoc when the joint session of Congress meets January 6, 2021, for the official count of the electors’ votes.

Brook Thomas<https://www.faculty.uci.edu/profile.cfm?faculty_id=2519>, Chancellor’s Professor Emeritus at UC Irvine, explains the history leading to the 1887 law and what he views as the media’s misrepresentation of that history in “Rule by Law under a Flawed System to Elect a President.”<https://electionlawblog.org/wp-content/uploads/brook-thomas.ec_.pdf>
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, electoral college<https://electionlawblog.org/?cat=44>


“Why race-specific voter turnout data is a challenge to collect”<https://electionlawblog.org/?p=119792>
Posted on December 20, 2020 9:17 am<https://electionlawblog.org/?p=119792> by Rick Hasen<https://electionlawblog.org/?author=3>

Poynter:<https://www.poynter.org/reporting-editing/2020/why-race-specific-voter-turnout-data-is-a-challenge-to-collect/>

With vote counting and certification for the 2020 presidential election behind us, national and local news outlets have largely framed public understanding of what the electorate looked like this year.

Media organizations kept track of key facts like the proportion of votes cast by mail versus in-person, the rejection rate of absentee ballots, turnout rates in given counties and states, as well as the gender, education, and age of people who voted in the election. And one of the most critical categories for voter self-identification was race.

Research shows that race and ethnicity play<https://iop.harvard.edu/race-and-ethnicity-still-play-role-political-attitudes> a big role in political attitudes. In the key battleground state of Pennsylvania, there was overwhelming support for each candidate along racial and ethnic lines. According to exit polls<https://www.washingtonpost.com/elections/interactive/2020/exit-polls/pennsylvania-exit-polls/>, 92% of Black people in Pennsylvania voted for President-elect Joe Biden. And 69% of Latino voters supported Biden in the state.

Racial breakdowns of the vote reflect a shift from 2016. Biden got 89% of the Black male vote in the state, compared to the 83% who voted for Hillary Clinton. Nationally, Hispanic/Latino women voters produced an uptick in support for Biden: 69% compared with 65% for Clinton in 2016<https://qz.com/833003/election-2016-all-women-voted-overwhelmingly-for-clinton-except-the-white-ones/>, according to data from the National Election Pool.

But strategies for accurately estimating voter turnout by race vary by state and by media organizations. In Pennsylvania, voter registration records do not include any individual-level data on race. That means individual counties in the state can not provide exact race-specific breakdowns about turnout.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


NY-22: “Tenney leads Brindisi by 19 votes after count of Chenango County ballots”<https://electionlawblog.org/?p=119790>
Posted on December 20, 2020 9:13 am<https://electionlawblog.org/?p=119790> by Rick Hasen<https://electionlawblog.org/?author=3>

Syracuse.com:<https://www.syracuse.com/politics/2020/12/tenney-leads-brindisi-by-19-votes-after-count-of-chenango-county-ballots.html>

Former Rep. Claudia Tenney<https://www.syracuse.com/politics/2020/11/tenney-leads-brindisi-by-12-in-first-official-vote-count-in-house-election.html> expanded her lead from 12 to 19 votes over Rep. Anthony Brindisi<https://www.syracuse.com/topic/22nd%20Congressional%20District/> today after three counties reported corrected vote totals in the undecided 22nd Congressional District election.

For now, Tenney leads Brindisi 155,519 to 155,500, according to unofficial returns from the eight counties in the district.

Those totals are likely to change again after Oneida County finishes its review of disputed ballots ahead of a court-ordered review of disputed ballots from all eight counties next week.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Officials Alarmed Over Trump Talk of a Power Grab”<https://electionlawblog.org/?p=119784>
Posted on December 19, 2020 5:41 pm<https://electionlawblog.org/?p=119784> by Rick Hasen<https://electionlawblog.org/?author=3>

Political Wire:<https://politicalwire.com/2020/12/19/officials-alarmed-about-trumps-power-grab/>

Jonathan Swan<https://www.axios.com/trump-officials-alarmed-overturn-election-results-a844d1d2-acb2-47a9-87ce-ac579458b1ea.html?utm_campaign=organic&utm_medium=socialshare&utm_source=twitter>: “Senior Trump administration officials are increasingly alarmed that President Trump might unleash — and abuse — the power of government in an effort to overturn the clear result of the election.”

“These officials tell me that Trump is spending too much time with people they consider crackpots or conspiracy theorists and flirting with blatant abuses of power.”

“Their fears include Trump’s interest in former national security adviser Michael Flynn’s wild talk of martial law; an idea floated of an executive order to commandeer voting machines; and the specter of Sidney Powell, the conspiracy-spewing election lawyer, obtaining governmental power and a top-level security clearance.”

Maggie Haberman<https://twitter.com/maggieNYT/status/1340393624706703363?s=20>: “Sources who have gotten used to Trump’s eruptions over four years sound scared by what’s transpired in the past week when I’ve talked to them.”

Earlier<https://www.nytimes.com/2020/12/19/us/politics/trump-sidney-powell-voter-fraud.html> from the NYT:

President Trump on Friday discussed naming Sidney Powell<https://www.nytimes.com/article/who-is-sidney-powell.html>, who as a lawyer for his campaign team unleashed conspiracy theories about a Venezuelan plot to rig voting machines in the United States, to be a special counsel overseeing an investigation of voter fraud, according to two people briefed on the discussion.

It was unclear if Mr. Trump will move ahead with such a plan.

Most of his advisers opposed the idea, two of the people briefed on the discussion said, including Rudolph W. Giuliani, the president’s personal lawyer. In recent days Mr. Giuliani has sought to have the Department of Homeland Security join the campaign’s efforts to overturn Mr. Trump’s loss in the election.

Mr. Giuliani joined the discussion by phone initially, while Ms. Powell was at the White House for a meeting that became raucous and involved people shouting at each other at times, according to one of the people briefed on what took place.

Ms. Powell’s client, retired Lt. Gen. Michael T. Flynn, the former national security adviser whom the president recently pardoned<https://www.nytimes.com/2020/11/25/us/politics/michael-flynn-pardon.html>, was also there, two of the people briefed on the meeting said. Some senior administration officials drifted in and out of the meeting.

During an appearance on the conservative Newsmax channel this week, Mr. Flynn pushed for Mr. Trump to impose martial law and deploy the military to “rerun” the election. At one point in the meeting on Friday, Mr. Trump asked about that idea.

Ms. Powell’s ideas were shot down by every other Trump adviser present, all of whom repeatedly pointed out that she had yet to back up her claims with proof. At one point, one person briefed on the meeting said, she produced several affidavits, but upon inspection they were all signed by a man she has previously used as an expert witness, whose credentials have been called into question.

The White House counsel, Pat A. Cipollone, and the White House chief of staff, Mark Meadows, repeatedly and aggressively pushed back on the ideas being proposed, which went beyond the special counsel idea, those briefed on the meeting said.

Mr. Cipollone told Mr. Trump there was no constitutional authority for what was being discussed, one of the people briefed on the meeting said. Other advisers from the White House and the Trump campaign delivered the same message throughout the meeting, which stretched on for a long period of time.

Trump promised <https://twitter.com/realDonaldTrump/status/1340185773220515840?s=20> a “wild” protest January 6 when Congress counts the electoral college votes:
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>


“Decades of Inequality Shadow Voter Turnout in Rural Georgia”<https://electionlawblog.org/?p=119782>
Posted on December 18, 2020 3:59 pm<https://electionlawblog.org/?p=119782> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld<https://billmoyers.com/story/decades-of-inequality-shadow-voter-turnout-in-rural-georgia/> for Bill Moyers.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Republicans Are Trying to Disqualify Newly Registered Voters from Participating in Senate Runoff Elections”<https://electionlawblog.org/?p=119780>
Posted on December 18, 2020 11:45 am<https://electionlawblog.org/?p=119780> by Rick Hasen<https://electionlawblog.org/?author=3>

Law and Crime reports.<https://lawandcrime.com/2020-election/republicans-are-trying-to-disqualify-newly-registered-voters-from-participating-in-senate-runoff-elections/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s Future: Tons of Cash and Plenty of Options for Spending It”<https://electionlawblog.org/?p=119777>
Posted on December 18, 2020 9:32 am<https://electionlawblog.org/?p=119777> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/12/18/us/politics/trump-money-future.html>

Donald J. Trump will exit the White House as a private citizen next month perched atop a pile of campaign cash unheard-of for an outgoing president, and with few legal limits on how he can spend it.

Deflated by a loss he has yet to acknowledge, Mr. Trump has cushioned the blow by coaxing huge sums of money from his loyal supporters — often under dubious pretenses — raising roughly $250 million since Election Day along with the national party.

More than $60 million of that sum has gone to a new political action committee, according to people familiar with the matter, which Mr. Trump will control after he leaves office. Those funds, which far exceed what previous outgoing presidents had at their disposal, provide him with tremendous flexibility for his post-presidential ambitions: He could use the money to quell rebel factions within the party, reward loyalists, fund his travels and rallies, hire staff, pay legal bills and even lay the groundwork for a far-from-certain 2024 run.

The post-election blitz of fund-raising has cemented Mr. Trump’s position as an unrivaled force and the pre-eminent fund-raiser of the Republican Party even in defeat. His largest single day for online donations actually came after Election Day — raising almost $750,000 per hour on Nov. 6. So did his second biggest day. And his third….

Some campaign finance experts have speculated that Mr. Trump might try to use the excess of cash in his new PAC, formally known as a leadership PAC, to pay for his own personal future legal quagmires, as he faces investigations once he leaves office. (A senior Trump adviser said they don’t expect the money to be used for personal legal needs.)

“A leadership PAC is a slush fund,” said Meredith McGehee, executive director of Issue One, a group that supports increased political transparency. “There are very, very, very few limits on what he can’t spend money on.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“How did the GOP gain in the House while Trump lost? It’s actually pretty simple.”<https://electionlawblog.org/?p=119775>
Posted on December 18, 2020 8:22 am<https://electionlawblog.org/?p=119775> by Rick Hasen<https://electionlawblog.org/?author=3>

Aaron Blake:<https://www.washingtonpost.com/politics/2020/12/18/how-did-gop-gain-house-while-trump-lost-its-actually-pretty-simple/>

One of the increasingly prevalent arguments spun by President Trump and his allies when it comes to supposed voter fraud in the 2020 election is this: Republicans had, by and large, a pretty good election below the presidential level. They gained significant ground in the House and probably held the Senate — as long as they don’t lose both Georgia runoffs<https://www.washingtonpost.com/politics/interactive/2020/georgia-senate-runoff-guide/?itid=sf_the-fix&itid=lk_inline_manual_2>. So how on earth did Trump lose?

The answer is actually pretty simple: Our elections increasingly look more like parliamentary ones, and given that, the results make a ton of sense.

Data<https://docs.google.com/document/d/1sZ6_KTC6N2P940PcSjaSkqqN93-Yhr0oqKVg_dBUs9M/edit> from the election-reform group FairVote sheds some light on how the battle for the House played out. The big takeaway: Our politics are increasingly less about people and incumbents and more about party. We’ve been talking about increased polarization for many years, but the 2020 election really drove it home. The results for Congress affirm the fact that Republicans writ large lost the election, even though it might have been closer than many expected.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>, political polarization<https://electionlawblog.org/?cat=68>


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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