[EL] ELB News and Commentary 12/30/20
Rick Hasen
rhasen at law.uci.edu
Wed Dec 30 06:58:08 PST 2020
“How Congress and coronavirus could quash Trump’s Electoral College gambit”<https://electionlawblog.org/?p=120114>
Posted on December 30, 2020 6:56 am<https://electionlawblog.org/?p=120114> by Rick Hasen<https://electionlawblog.org/?author=3>
Very helpful Politico article<https://www.politico.com/news/2020/12/30/electoral-college-biden-trump-452081> on the Jan. 6 state of play:
President Donald Trump’s last-gasp bid to overturn his 2020 election defeat appears doomed on Jan. 6, when Congress is set to certify President-elect Joe Biden’s victory.
But the byzantine process by which Congress counts and validates the Electoral College results has left gnawing uncertainty about precisely how the final act in Trump’s undemocratic drama will play out.
The law that guides the proceedings, the Electoral Count Act — passed in 1887 to address the disastrous election of 1876 — is vaguely written and full of gaps that have perplexed constitutional scholars for a century. Now, Trump and his allies are working to exploit those gaps to try to muscle their way to a second term.
There’s little doubt that Biden will be certified as president by the end of the day on Jan. 6 or in the wee hours of Jan. 7, but Trump’s allies could cast a cloud over the process — grinding it to a halt, attempting to force votes on alternate slates of Trump-supporting electors and raising untold objections to the proceedings that could disrupt the traditionally ceremonial event.
But the lack of clarity also create enormous opportunities for those who wish to limit or prevent the day-long spectacle that Trump’s allies are promising. That could include both Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell, who has been working to tamp down GOP support for challenges in recent days — drawing Trump’s fury.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, electoral college<https://electionlawblog.org/?cat=44>
“Trump allies launch desperate final efforts ahead of congressional confirmation of Biden win”<https://electionlawblog.org/?p=120112>
Posted on December 30, 2020 6:45 am<https://electionlawblog.org/?p=120112> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/politics/trump-contest-election-congress/2020/12/29/425fb512-4a05-11eb-839a-cf4ba7b7c48c_story.html>
President Trump and his allies are growing increasingly desperate as Congress prepares to formally receive the votes that will confirm his election loss next week, filing lawsuits against nonexistent entities and even Trump’s own vice president as they try to come up with new ways to overturn the vote.
One lawsuit filed last week by a conservative group that supports Trump targeted, among others, the electoral college — which does not exist as a permanent body. Another lawsuit filed Sunday by U.S. Rep. Louie Gohmert (R-Tex.) and several Arizona Republicans against Vice President Pence attempts to get a federal judge to expand Pence’s power to affect the outcome.
Pence will preside over next week’s joint session of Congress, where the electoral votes<https://www.washingtonpost.com/politics/electoral-college-affirms-bidens-victory-on-a-relatively-calm-day-of-a-chaotic-election/2020/12/14/0994b232-3e48-11eb-9453-fc36ba051781_story.html?itid=lk_inline_manual_4> cast earlier this month will be read aloud. President-elect Joe Biden won 306 electoral votes to Trump’s 232, reflecting Biden’s 81 million votes nationwide as he secured the White House.
Trump has been working to incite his supporters over the ceremonial milestone, falsely portraying it as a final showdown in his battle to alter the election’s outcome. “See you in Washington, DC, on January 6th. Don’t miss it,” Trump tweeted Sunday.
There were some initial signs Tuesday that Trump’s last-ditch appeal may be faltering, even among some of his most fervent supporters.
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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>
“Georgia elections manager left state job, got $200K per year contract”<https://electionlawblog.org/?p=120109>
Posted on December 29, 2020 8:28 pm<https://electionlawblog.org/?p=120109> by Rick Hasen<https://electionlawblog.org/?author=3>
AJC:<https://www.ajc.com/politics/georgia-elections-manager-left-state-job-got-200k-per-year-contract/WA74UJ5BQNGDDMQXITVIBZZXFI/>
The man who oversees Georgia’s voting system, Gabriel Sterling, negotiated a $200,000 per year contract for himself last year, quit his state government job and has worked as an independent contractor ever since.
Under the arrangement, Sterling’s pay increased from his $114,000 government salary since November 2019, when he took on the role of project manager for the purchase and rollout of the state’s new voting equipment<https://www.ajc.com/news/state--regional-govt--politics/georgia-bets-new-voting-system-amid-high-stakes-election/XVR7Jw5i1J7MiZ11O8xUZK/>. State election officials say as a contractor, the government didn’t have to pay benefits, such as health insurance.
Though he’s a contractor, Sterling has become the face of Georgia elections, leading press conferences debunking election conspiracy theories<https://www.ajc.com/politics/5-georgia-election-fraud-claims-explained/HG7LECMRRZGBNH6VNLYI4H5R6A/>, criticizing mistakes<https://www.ajc.com/politics/recount-finds-thousands-of-georgia-votes-missing-from-initial-counts/ERDRNXPH3REQTM4SOINPSEP72M/> by county election officials and calling out<https://www.ajc.com/politics/election/georgia-recount-down-to-final-two-days/CJ6NXB2VVFAH7FI5SM32KXXZ6A/> President Donald Trump for inciting threats against election workers, proclaiming “this has to stop.”
Sterling, a lifelong Republican, even drew praise from Democrats for his comments, and he received flowers and handwritten notes<https://www.nytimes.com/2020/12/07/podcasts/the-daily/gabriel-sterling-georgia-election.html?> from voters across the country.
But his independent status prompted questions from state legislators and critics who have asked why oversight of the state’s voting machines is being managed outside Republican Secretary of State Brad Raffensperger’s payroll.
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Posted in election administration<https://electionlawblog.org/?cat=18>
“How Richard Jewell’s Lawyer Became a Pro-Trump Conspiracy Theorist”<https://electionlawblog.org/?p=120107>
Posted on December 29, 2020 8:17 pm<https://electionlawblog.org/?p=120107> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT reports<https://www.nytimes.com/2020/12/29/us/politics/lin-wood-georgia-trump.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Organ: Comparing Congressional Election Results With Presidential Election Results In Key Swing States”<https://electionlawblog.org/?p=120105>
Posted on December 29, 2020 8:08 pm<https://electionlawblog.org/?p=120105> by Rick Hasen<https://electionlawblog.org/?author=3>
Tax Prof Blog:<https://taxprof.typepad.com/taxprof_blog/2020/12/comparing-congressional-election-results-with-presidential-election-results-in-key-swing-states.html>
In trying to understand how statistics might inform one’s understanding of claims of electoral fraud and inform our understanding of how President Trump lost the election in key swing states, I have looked at the comparisons of voting within Congressional districts. Congressional districts provide an interesting framework because each Congressional district conceptually represents a comparable population of people, although both voter registration and voter turnout will vary across Congressional districts….
This analysis proceeds in two parts. First, it looks at the overall distribution of votes across Congressional districts in key swing states to see if there are aberrational patterns worth noting. None were found. Second, it looks at results on a state-by-state basis to see what the state results can tell us about why President Trump lost and President-Elect Biden won in these states. There appears to be one key lesson from these state-by-state analyses. To the extent that there is a common theme across states, the theme appears to be that President Trump lost because he did not perform as well as Republican Congressional candidates in districts in which Republican Congressional candidates won in these states. Phrased differently, people who voted for Republican Congressional candidates failed to vote for President Trump in the same numbers as they voted for Republican Congressional candidates – resulting in President Trump’s loss to President-Elect Biden in at least three of these swing states. …
As one reflects on the unfounded allegations of electoral fraud that have been rejected by state and federal courts in each of these states, I think one needs to consider what these data suggest. Particularly in jurisdictions like Georgia and Wisconsin, where Republicans garnered more votes than Democrats in the Congressional races, but President Trump managed to lose, these data show that President Trump lost in these jurisdictions because in multiple counties in multiple Republican Congressional districts, dozens or hundreds or thousands of people who voted for Republican Congressional candidates opted not to vote for President Trump and may have opted to vote for President-Elect Biden.
Nothing was stolen. Nothing was taken from President Trump. President Trump lost in these five swing states because he failed to maintain the margin of victory of Republican Congressional candidates in 24 of the 25 Republican Congressional districts, and in fact, garnered fewer votes than the Republican Congressional candidates in 20 of the 25 Republican Congressional districts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Thanks to the National Law Journal’s Supreme Court Brief for Recommending Election Meltdown on Its List of Best SCOTUS Books of 2020<https://electionlawblog.org/?p=120102>
Posted on December 29, 2020 6:17 pm<https://electionlawblog.org/?p=120102> by Rick Hasen<https://electionlawblog.org/?author=3>
You can find the recommendation here<https://www.law.com/supremecourtbrief/2020/12/16/this-years-scotus-books-abortion-rights-amid-the-pandemic-shanmugams-5th-cert-grant-this-term-headlines-what-did-alito-mean-again/> (subscription required).
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
“There were not more votes than voters in Pennsylvania”<https://electionlawblog.org/?p=120100>
Posted on December 29, 2020 6:02 pm<https://electionlawblog.org/?p=120100> by Rick Hasen<https://electionlawblog.org/?author=3>
AP Fact Check:<https://apnews.com/article/fact-checking-afs:content:9887147615>
AIM: There were 205,000 more votes than voters in the 2020 election in Pennsylvania.
AP’S ASSESSMENT: False. This analysis is based on incomplete data, according to the Pennsylvania Department of State.
THE FACTS: A misleading claim about election results from a group of Republican state lawmakers in Pennsylvania is circulating widely on social media a week before Congress meets <https://apnews.com/article/congress-count-electoral-college-vote-5605532631a251ac8f902d1d1ca55428> to reaffirm Joe Biden’s decisive presidential win<https://apnews.com/article/electoral-college-confirm-joe-biden-win-2d4fd7368d8fd6cb47ff0b2cc206271a>.
The claim emerged in a release from the Republican state Rep. Frank Ryan and several others on Monday.
“A comparison of official county election results to the total number of voters who voted on Nov. 3, 2020, as recorded by the Department of State shows that 6,962,607 total ballots were reported as being cast, while DoS/SURE system records indicate that only 6,760,230 total voters actually voted,” the release said.
The claim then spread to several right-wing websites and social media influencers, including Trump, whose tweet claiming Pennsylvania had 205,000 more votes than voters was retweeted 117,000 times.
However, these claims rely on incomplete data, according to Wanda Murren, communications director for the Pennsylvania Department of State, who called the lawmakers’ release “obvious misinformation.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Georgia: “GBI finishes signature audit in Cobb County, finds only two mismatches”<https://electionlawblog.org/?p=120098>
Posted on December 29, 2020 5:55 pm<https://electionlawblog.org/?p=120098> by Rick Hasen<https://electionlawblog.org/?author=3>
WSB-TV:<https://www.wsbtv.com/news/local/cobb-county/gbi-finishes-signature-audit-cobb-county-finds-only-two-mismatches/ON42CSQBORHYJDBGZKKMPC3YAQ/?utm_campaign=snd-autopilot>
Channel 2 Action News has learned that the Georgia Bureau of Investigation has finished the signature audit in Cobb County over the November election.
Earlier in the month, Secretary of State Brad Raffensperger said his office had investigated credible allegations that Cobb County improperly performed signature matches during the June primary, so he ordered a signature audit for the November election in that county.
Channel 2 investigative reporter Justin Gray spoke with Raffensperger late Tuesday afternoon, who said there were only two mismatched signatures among the more than 15,000 votes in the audit.
The inaccuracy came from a wife who signed her name to ballots for both her and her husband, the Secretary of State said.
“It really shows you and should give voters confidence that there’s accuracy and integrity, and security, in the absentee ballot process so we’re really grateful for GBI’s support,” Raffensperger said.
The audit found no fraudulent absentee ballots with a 99% confidence threshold, Raffensperger’s office said in a news release Tuesday.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>
“Pence declined to back Gohmert-led effort to upend election, lawyers indicate”<https://electionlawblog.org/?p=120096>
Posted on December 29, 2020 3:24 pm<https://electionlawblog.org/?p=120096> by Rick Hasen<https://electionlawblog.org/?author=3>
Politico:<https://www.politico.com/news/2020/12/29/pence-gohmert-electoral-college-count-452040>
Lawyers for Rep. Louie Gohmert (R-Texas) and Arizona’s 11 Republican electors revealed Tuesday that Vice President Mike Pence declined to sign onto their plan to upend Congress’ certification of President-elect Joe Biden’s victory.
It’s the first indication that Pence is resisting some of the most extreme calls to reverse the presidential election results, thus relying on his role as the presiding officer on Jan. 6, when Congress meets to finalize Biden’s win.
Gohmert and the Arizona electors sued Pence this week to throw out the procedures that Congress has relied upon since 1889 to count electoral votes. Instead, he said, Pence has the unilateral authority to determine which electors should be voted upon by Congress — raising the prospect that Pence would simply override the choices made by voters in states like Arizona and Pennsylvania that Biden won, to introduce President Donald Trump’s electors instead.
But in a motion to expedite proceedings<https://www.courtlistener.com/recap/gov.uscourts.txed.203073/gov.uscourts.txed.203073.7.0.pdf>, Gohmert and the electors revealed that their lawyers had reached out to Pence’s counsel in the Office of the Vice President to attempt to reach agreement before going to court.
“In the teleconference, Plaintiffs’ counsel made a meaningful attempt to resolve the underlying legal issues by agreement, including advising the Vice President’s counsel that Plaintiffs intended to seek immediate injunctive relief in the event the parties did not agree,” according to Gohmert’s filing. “Those discussions were not successful in reaching an agreement and this lawsuit was filed.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Trump Campaign Files Another Bogus Supreme Court Petition, This Time Seeking to Overturn the Voters’ Choice in Wisconsin<https://electionlawblog.org/?p=120094>
Posted on December 29, 2020 3:16 pm<https://electionlawblog.org/?p=120094> by Rick Hasen<https://electionlawblog.org/?author=3>
This<https://cdn.donaldjtrump.com/public-files/press_assets/trump-v-biden-petition-appendix-final.pdf> stuff <https://cdn.donaldjtrump.com/public-files/press_assets/motion-expedited-consideration-12-29-20-final-29562233.1.pdf> is going nowhere, but it should be santionable<https://twitter.com/rickhasen/status/1344058785078202371>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Sorry, President Trump. January 6 is not an election do-over.”<https://electionlawblog.org/?p=120092>
Posted on December 29, 2020 1:50 pm<https://electionlawblog.org/?p=120092> by Rick Hasen<https://electionlawblog.org/?author=3>
Important <https://www.washingtonpost.com/opinions/2020/12/29/sorry-president-trump-january-6-is-not-an-election-do-over/> Ned Foley in WaPo:
President Trump and his supporters are trying to turn the Jan. 6 congressional session for counting electoral college votes into something that it is not and was never intended to be: a forum for litigating Trump’s claims of voter fraud.
Never mind that Trump has no evidence to support his assertion that massive fraud is what caused Joe Biden to win the popular vote in enough states for an electoral college victory. The critical point is this: Even if there were such proof, the Jan. 6 session is not the place to present it.
The Constitution and the Electoral Count Act of 1887 intended the Jan. 6 session to address a narrow question: Are the electoral votes received by Congress ones cast by electors the states appointed?
This limited inquiry requires Congress simply to authenticate the documents. Remember, these rules were formulated in the 19th century, when there was a realistic risk of counterfeit papers pretending to be official. Thus, the 1887 act requires<https://www.law.cornell.edu/uscode/text/3/6> a state’s governor to affix “the seal of the State” to the certificate confirming the appointment of electors.
Further, the 1887 act obligates<https://www.law.cornell.edu/uscode/text/3/5> Congress to consider “conclusive” a state’s own “final determination” of litigation over a state’s appointment of electors when two conditions are met. The “final determination” must occur by a certain date, Dec. 8 this year, and must be based on state laws existing before Election Day, Nov. 3. Congress instructs<https://www.law.cornell.edu/uscode/text/3/6> governors to provide verification of these two conditions in their certifications.
This is the opposite of Trump allies’ feverish imaginings about using the session as an opportunity for congressional fact-finding on whether fraud or error tainted the tally of the state’s popular vote.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, electoral college<https://electionlawblog.org/?cat=44>
“Do Republicans really believe the election was stolen – or are they just saying that?”<https://electionlawblog.org/?p=120090>
Posted on December 29, 2020 11:28 am<https://electionlawblog.org/?p=120090> by Rick Hasen<https://electionlawblog.org/?author=3>
Elizabeth Connors<https://www.washingtonpost.com/politics/2020/12/22/do-republicans-really-believe-election-was-stolen-or-are-they-just-saying-that/> for The Monkey Cage:
My results suggest three more things that are cause for both pessimism and optimism.
First, discussing Republicans’ belief in election fraud could make the problem worse. Doing so reinforces the idea that Republicans believe there’s been election fraud while Democrats don’t — which reinforces the social pressure to respond accordingly.
Second, it’s very hard to measure what citizens really think about an election’s legitimacy. As political scientists Ryan Claasen, Michael Ensley and John Barry Ryan wrote in a recent TMC article<https://www.washingtonpost.com/politics/2020/11/25/why-so-many-republican-officials-went-along-with-trumps-fraud-claims/?itid=lk_inline_manual_42>, many partisans only believe certain actions are stealing the election when the other party does it.
My research findings complicate this further with the fact that those who genuinely believe the election was stolen are pressuring fellow party members to say they believe that as well.
Finally, my research suggests that the surveys finding widespread Republican belief that the 2020 election was fraudulent isn’t really as strong as we might think. Some people may simply be saying that’s what they believe in order to look like a good Republican.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“Will Pence Do the Right Thing?”<https://electionlawblog.org/?p=120088>
Posted on December 29, 2020 11:24 am<https://electionlawblog.org/?p=120088> by Rick Hasen<https://electionlawblog.org/?author=3>
Neal Katyal and John Monsky NYT oped<https://www.nytimes.com/2020/12/29/opinion/mike-pence-electoral-college-votes-congress.html?action=click&module=Opinion&pgtype=Homepage>:
Nothing in either the text of the Constitution or the Electoral Count Act gives the vice president any substantive powers. His powers are ministerial, and that circumscribed role makes general sense: The whole point of an election is to let the people decide who will rule them. If an incumbent could simply maneuver to keep himself in office — after all, a maneuver to protect Mr. Trump also protects Mr. Pence — the most foundational precept of our government would be gravely undermined. In America, “we the people,” not “we, the vice president,” control our destiny.
The drafters of the Electoral Count Act consciously insisted on this weakened role for the vice president. They guarded against any pretense he might have to throw out a particular state’s votes, saying that the vice president must open “all certificates and papers purporting to be<https://www.loc.gov/law/help/statutes-at-large/49th-congress/session-2/c49s2ch90.pdf>” electoral votes. They further said, in the event of a dispute, both chambers of Congress would have to disagree with a particular state’s slate of electoral votes to reject them. And they made it difficult for Congress to disagree, adding measures such as a “safe harbor” provision and deference to certification by state officials.
In this election, certification is clear. There are no ongoing legal challenges in the states of any merit whatsoever. All challenges have lost, spectacularly and often, in the courts. The states and the electors have spoken their will. Neither Vice President Pence nor the loyal followers of President Trump have a valid basis to contest anything.
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Posted in electoral college<https://electionlawblog.org/?cat=44>
“Michigan Supreme Court won’t hear lawsuit challenging absentee ballot applications”<https://electionlawblog.org/?p=120086>
Posted on December 29, 2020 9:39 am<https://electionlawblog.org/?p=120086> by Rick Hasen<https://electionlawblog.org/?author=3>
The Detroit Free Press reports<https://www.freep.com/story/news/local/michigan/detroit/2020/12/29/michigan-supreme-court-jocelyn-benson-mail-ballot-applications-election/4071925001/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Tenney re-takes lead in NY 22nd election as Oneida County gets close to finishing count”<https://electionlawblog.org/?p=120084>
Posted on December 29, 2020 6:43 am<https://electionlawblog.org/?p=120084> by Rick Hasen<https://electionlawblog.org/?author=3>
Syracuse.com:<https://www.syracuse.com/politics/cny/2020/12/tenney-re-takes-lead-in-ny-22nd-election-as-oneida-county-gets-close-to-finishing-count.html>
Republican Claudia Tenney has re-taken the lead, albeit a small one, in the continuing saga of New York’s Congressional District election, according to her campaign.
Tenney has a lead of about 30 votes, according to her campaign spokesman Sean Kennedy. That figure was also confirmed by an attorney familiar with the count.
More than 311,000 voters cast ballots in the race against incumbent Anthony Brindisi (D-Utica), making her margin incredibly small.
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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
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http://electionlawblog.org<http://electionlawblog.org/>
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