[EL] ELB News and Commentary 12/24/20

[Rick Hasen]

“Could Trump declare martial law to try to steal the election? That and other efforts his allies are floating won’t work, say legal and national security experts. Here’s why.”<https://electionlawblog.org/?p=120034>
Posted on December 24, 2020 11:11 am<https://electionlawblog.org/?p=120034> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports<https://www.washingtonpost.com/politics/2020/12/24/could-trump-declare-martial-law-try-steal-election/>.

Can anyone imagine such a headline as recently as 5 years ago?
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>


“LDF Files Agreement Requiring USPS to Implement Key Measures to Prioritize and Expedite Ballot Delivery in Georgia Runoff Election”<https://electionlawblog.org/?p=120032>
Posted on December 24, 2020 11:03 am<https://electionlawblog.org/?p=120032> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:

Last night, the NAACP Legal Defense and Educational Fund, Inc. (LDF)<https://u7061146.ct.sendgrid.net/ls/click?upn=TeZUXWpUv-2B6TCY38pVLo9me67QQpgBf6XxJtjS3-2B5hw-3D57vj_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9VSScuchv-2BUV-2BYwr5ThS94L5yUBlyoXYq7Doek6Ey-2BlT3JgTApps4-2FMhjpeyBCeQhsIZ9RLrNUTmJdZj8jFPBJ0DIcnvcy4DG5em-2Feye-2FAQHqSAHDcxe0l8HB-2BpnBcfkvvp0h7CtBBtOF0Ap4KW5f-2FNMCkD4hS0VBcv2Jm0R38lVzwKrJvzUYnnBYkD-2B9rb3DUL5FuJ7DEdl7BZfMIyMVoKSB6ZfAUXdodA4fozT0rZsy8NPWXXd34hBgEfXMEKwrI-3D> filed an agreement with the U.S. District Court for the District of Columbia requiring the United States Postal Service (USPS) to implement key measures that will prioritize and expedite the delivery of ballots for the January 5, 2021, Georgia Runoff Election. Among a variety of measures, the agreement requires<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUR-2B7SayWy6XrPXypywjEFVI2ez4rVY2fwWNWdGfMmhPMNqq3l9zDeIk-2BDZajKzz6LYnp8BYfHezsGWL-2BqVceaGs-3DYqll_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9VSScuchv-2BUV-2BYwr5ThS94L5yUBlyoXYq7Doek6Ey-2BlT3JgTApps4-2FMhjpeyBCeQhsIZ9RLrNUTmJdZj8jFPBJ0TH3oqC6zkmfmIAmeD3iu-2BH3M16fS6lGIAuxXPe7YguXlLkIby6j9Cw8Yp7lxciyXiv3wxKr8SwQ55JY-2BNPB-2BXSA7zhXNClLGRmljin7TW5svTefC-2FiTCvJ5TxawsuHLHAFYC97GBocrXpjANkUsi5-2Bkp03-2FOb2RtJCtMWAXlovE-3D> the USPS to continue to use Express Mail to deliver ballots in certain circumstances and conduct daily sweeps of processing facilities in the week before the election to ensure no ballots are left behind.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How the much-litigated ballot deadlines affected the US election”<https://electionlawblog.org/?p=120030>
Posted on December 24, 2020 11:01 am<https://electionlawblog.org/?p=120030> by Rick Hasen<https://electionlawblog.org/?author=3>

The Guardian/VoteBeat:<https://www.theguardian.com/us-news/2020/dec/21/us-election-ballot-deadlines-impact>

Americans shattered records for voting by mail<https://www.theguardian.com/us-news/2020/nov/04/mail-in-ballot-tracker-us-election-2020> in many states in the 2020 presidential election, a phenomenon that tested existing election laws, new pandemic-related regulations, postal service capacity, voter education efforts and voters’ own resolve.

Some states had more wiggle room in accepting the mail-in votes than others, allowing ballots that were postmarked by election day to come in later, anywhere from the following day to nearly three weeks after. These grace periods became a highly contentious and politicized aspect of the election. The Trump campaign and its allies challenged them<https://www.newsobserver.com/news/politics-government/election/article246800362.html> all the way up to the US supreme court as part of an overall campaign questioning the legitimacy of mail-in voting.

Grace periods for mail-in ballots also became more significant as it became clear that the vote’s results would not be even close to final on election day and that the country would indeed experience the “big blue shift” that experts predicted<https://www.bloomberg.com/news/articles/2020-10-02/the-big-blue-shift-that-could-spell-election-mayhem-quicktake>.

But what are the implications of letting ballots arrive late? A state-by-state look at the turnout data shows that the numbers weren’t large but were substantial enough to potentially sway a local race or a tighter election. It also shows a messy national picture, with chaotic regulations and poor record-keeping.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Here’s the Pa. election lawsuit over mail ballots that could overturn a race — but not the presidency”<https://electionlawblog.org/?p=120028>
Posted on December 24, 2020 10:57 am<https://electionlawblog.org/?p=120028> by Rick Hasen<https://electionlawblog.org/?author=3>

Jonathan Lai <https://www.inquirer.com/politics/election/pennsylvania-mail-ballots-lawsuit-election-ziccarelli-brewster-20201223.html?utm_medium=email&utm_campaign=Morning%20email%2012-24-20&utm_content=Morning%20email%2012-24-20+CID_3f0268864083bdf4acf3cd649a10b53e&utm_source=newsletter_edit&utm_term=a%20historic%20presidential%20election%20years%20before%20this%20one> for Philly Inquirer:

A heated court fight over Pennsylvania mail ballots will determine who wins the election. And the decision could well ripple beyond 2020.

The fight isn’t over the presidency, of course — Joe Biden is clearly the president-elect — but a state Senate seat in Western Pennsylvania that hinges on just a few dozen votes.

At its narrowest, Ziccarelli v. Allegheny County Board of Elections is an argument over 2,349 mail ballots cast in Allegheny County that arrived in time but lacked dates filled out on the envelopes. Those ballots, including 311 votes in the 45th Senatorial District, gave incumbent Sen. Jim Brewster, a Democrat, the win by just 69 votes<https://www.electionreturns.pa.gov/General/CountyBreakDownResults?officeId=12&districtId=67>. The state Supreme Court affirmed Allegheny County’s decision to count the votes<http://www.pacourts.us/assets/files/setting-7845/file-10686.pdf?cb=77ef5b>.

But the district crosses into Westmoreland County, one of the counties that decided not to count ballots that lacked dates, classifying them as incomplete. That creates an unfair situation, Republican challenger Nicole Ziccarelli argued in her federal court lawsuit. Similar votes are being handled differently in different counties, which she says violates the U.S. Constitution’s equal protection guarantees.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump attorneys risk disciplinary action over wave of election suits”<https://electionlawblog.org/?p=120026>
Posted on December 24, 2020 10:55 am<https://electionlawblog.org/?p=120026> by Rick Hasen<https://electionlawblog.org/?author=3>

John Kruzel<https://thehill.com/regulation/court-battles/531537-trump-attorneys-risk-disciplinary-action-over-wave-of-election-suits> for The Hill:

The possibility of Trump-allied attorneys facing disciplinary action was in many ways sparked by their woeful win-loss record in court. By some estimates, the campaign and its allies have prevailed in only a minor case affecting a sliver of Pennsylvania mail ballots, while at the same time losing or withdrawing in more than 50 rounds in state and federal court.

“Essentially, the rules require lawyers to screen out junk from the court in order to protect judicial resources, which are limited. Lawyers have a gatekeeper function,” said Stephen Gillers, a law professor at New York University. “The abysmal failure rate of the campaign’s claims, and the fact that claims were filed even after many losses, reveal almost certain violations of these rules.”…

Steven Lubet, a law professor at Northwestern University, said he’s generally opposed to what he called the “weaponization” of legal ethics. In 2017 he penned an essay for Slate pushing back against disciplinary charges filed by law professors against former Trump adviser and White House counselor Kellyanne Conway<https://thehill.com/people/kellyanne-conwaya>.

But Lubet said he views the election-related lawsuits differently to the extent that it can be shown that the lawyers submitted untrue claims in court filings.

“I would not make a similar argument in defense of an attorney’s false claims in federal court litigation,” he said.

Legal ethics rules generally prohibit lawyers from filing frivolous claims, which are those lacking in legal or factual support. Yet even if a legal argument is not considered frivolous, experts said, they can still violate ethics rules if made for an invalid reason.

“The federal rule forbids lawyers from invoking the judicial power for an ‘improper purpose,'” said Gillers of New York University Law School, citing efforts to raise funds or cast doubt on an election as examples of unethical purposes…

till, it’s relatively rare for public sanctions to be applied. According to Deborah Rhode, a law professor at Stanford Law School, fewer than 10 percent of all disciplinary complaints end with public sanctions.

But Rhode said it’s possible that courts or disciplinary bodies could view Trump’s post-election litigation in an especially harsh light given the weighty concerns at hand.

“The conduct of these lawyers was so egregious and the stakes were so high, given the way that suits fed doubts about the legitimacy of the election and the reputation of lawyers, that perhaps some disciplinary authorities will be moved to act,” she said.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election law biz<https://electionlawblog.org/?cat=51>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Supreme Court to Consider at Jan. 8 Conference Whether to Take Texas Democrats’ Case Alleging Age Discrimination for Absentee Balloting Excuses<https://electionlawblog.org/?p=120024>
Posted on December 24, 2020 10:51 am<https://electionlawblog.org/?p=120024> by Rick Hasen<https://electionlawblog.org/?author=3>

Docket.<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-1389.html>

The case raises this important questions not just under the Equal Protection Clause but also the 26th Amendment.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


NY-22: “Brindisi-Tenney race narrows even more: 3 to 5 votes separate candidates”<https://electionlawblog.org/?p=120022>
Posted on December 24, 2020 10:48 am<https://electionlawblog.org/?p=120022> by Rick Hasen<https://electionlawblog.org/?author=3>

Wow.<https://www.syracuse.com/politics/2020/12/brindisi-tenney-race-narrows-even-more-3-to-5-votes-separate-candidates.html>
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Posted in recounts<https://electionlawblog.org/?cat=50>


Fair Fight in Georgia Sues True the Vote for Voter Intimidation Under the Voting Rights Act<https://electionlawblog.org/?p=120020>
Posted on December 24, 2020 10:47 am<https://electionlawblog.org/?p=120020> by Rick Hasen<https://electionlawblog.org/?author=3>

Read the complaint.<https://drive.google.com/file/d/1APtxY7Yje4tblJ0Y5rkr6OLVghvtCJ6o/view>
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


True the Vote’s “Partnering” with Georgia Republican Party Raising New Legal Questions<https://electionlawblog.org/?p=120018>
Posted on December 23, 2020 2:57 pm<https://electionlawblog.org/?p=120018> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.detroitnews.com/story/news/politics/2020/12/22/georgia-gop-activist-voter-challenge/4005977001/>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“How Trump Could ‘Pocket Veto’ the Relief Bill”<https://electionlawblog.org/?p=119998>
Posted on December 23, 2020 12:02 pm<https://electionlawblog.org/?p=119998> by Rick Hasen<https://electionlawblog.org/?author=3>

Political Wire.<https://politicalwire.com/2020/12/23/how-trump-could-pocket-veto-the-relief-bill/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Elderly Voters in New Mexico Town Getting Mysterious Home Visits by People Apparently Looking for Absentee Ballot Fraud<https://electionlawblog.org/?p=119913>
Posted on December 23, 2020 10:56 am<https://electionlawblog.org/?p=119913> by Rick Hasen<https://electionlawblog.org/?author=3>

Bizarre story<https://www.scdailypress.com/2020/12/22/elderly-voters-getting-mysterious-home-visits/>.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“The Toll Of Conspiracy Theories: A Voting Security Expert Lives In Hiding”<https://electionlawblog.org/?p=119911>
Posted on December 23, 2020 10:47 am<https://electionlawblog.org/?p=119911> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR<https://www.npr.org/2020/12/23/948828692/the-toll-of-conspiracy-theories-a-voting-security-expert-lives-in-hiding>:

More than a month ago, Eric Coomer went into hiding.

The voting conspiracy theories that have led millions of Republicans to feel as though the election was stolen from them, which are still spreading, have also led to calls for Coomer’s head.

Coomer oversees product strategy and security for Dominion Voting Systems, the Denver-based company that has suddenly found itself at the center of many of President Trump’s false claims<https://www.usatoday.com/story/news/factcheck/2020/11/14/fact-check-dominion-voting-machines-didnt-delete-switch-votes/6282157002/> about November’s election, spread by allies and pro-Trump media.

Some of Trump’s supporters have focused on Coomer as the supposed evil mastermind.

“I actually am in fear for my safety,” Coomer said recently, speaking by video call from an undisclosed location to Colorado Public Radio<https://www.cpr.org/2020/12/21/election-conspiracy-theorists-focused-on-one-man-in-colorado-his-life-will-never-be-the-same-again/>. “I’m in fear for my family’s safety. These are real, tangible things coming out of these baseless accusations.”

On Tuesday, Coomer sued<https://www.npr.org/2020/12/22/949294173/dominion-voting-systems-employee-sues-trump-campaign-and-allies-for-defamation> the Trump campaign and a number of allies, alleging defamation.

It’s just the latest example of how people’s lives are being upended<https://www.npr.org/2020/12/16/946818045/from-congress-to-local-health-boards-public-officials-suffer-threats-and-harassm> and potentially ruined by the unprecedented flurry of disinformation this year.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Threat against Wayne Co. canvasser leads to federal charges for N.H. woman”<https://electionlawblog.org/?p=119909>
Posted on December 23, 2020 10:42 am<https://electionlawblog.org/?p=119909> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News:<https://www.detroitnews.com/story/news/local/detroit-city/2020/12/23/election-threat-leads-federal-charges-woman/4023295001/>

Federal prosecutors Wednesday filed charges against a New Hampshire woman accused of texting threats to the chairwoman of the Wayne County Board of Canvassers following the presidential election and sending photos of a bloody mutilated female body.

Katelyn Jones, 23, a former Olivet resident who lives in Epping, was charged with threatening violence through interstate commerce following an FBI investigation that probed lingering fallout from President Donald Trump’s defeat and baseless allegations about voting irregularities.

The criminal complaint and an FBI affidavit filed in federal court describe threats made against Monica Palmer, chairwoman of the Wayne County Board of Canvassers, after the Republican canvasser voted against certifying the election results. Palmer faced intense scrutiny over her decision to decline certification, then certify and then attempt to rescind her vote on the final certification of roughly 878,000 votes in Michigan’s largest county.

Despicable.
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Posted in chicanery<https://electionlawblog.org/?cat=12>
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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