[EL] ELB News and Commentary 2/4/20

Tue Feb 4 06:09:05 PST 2020

“Trump’s Jokes About Defying Election Results Could Create Chaos; There’s a real possibility he could declare victory before all the ballots are counted.”<https://electionlawblog.org/?p=109306>
Posted on February 4, 2020 5:58 am<https://electionlawblog.org/?p=109306> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/02/trump-jokes-rigged-elections-chaos.html> for Slate. It begins:

As President Donald Trump plans a triumphant State of the Union address anticipating his likely acquittal by the Senate, the White House is reportedly awash in a sense of invincibility<https://www.axios.com/trump-invincible-impeachment-dd93583a-3b06-4668-b744-1fb58385e41e.html>.

Trump’s certainty that he simply cannot lose could have a real impact on this year’s election. Since assuming office in January 2017, Trump has made at least 27 references<https://electionlawblog.org/wp-content/uploads/Trump-Beyond-2-Terms-Chart.xlsx> to staying in office beyond the constitutional limit of two terms. He often follows up with a remark indicating he is “joking,” “kidding,” or saying it to drive the “fake” news media “crazy.” Even if Trump thinks that he’s only “joking,” the comments fit a broader pattern that raises the prospect that Trump may not leave office quietly in the event he’s on the losing end of a very close election. And unfortunately this possibility is only one of a number of potential election meltdowns we may face in November….

The 2020 election is expected to be a close one, and it could give Trump an opening to emulate his authoritarian role models. During the 2016 election, he playfully suggested he would not accept the results of the election if he was on the losing end. As I recount in my book Election Meltdown<http://www.amazon.com/dp/0300248199/?tag=slatmaga-20>, Trump refused to promise to abide by the results if he lost to Hillary Clinton, relying on his claim of a rigged or stolen election. On Oct. 20, 2016, at a rally in Delaware, Ohio, he declared<https://www.cnn.com/2016/10/20/politics/donald-trump-i-will-totally-accept-election-results-if-i-win/index.html>: “Ladies and gentlemen, I want to make a major announcement today. I would like to promise and pledge to all of my voters and supporters, and to all the people of the United States, that I will totally accept the results of this great and historic presidential election—if I win.” His dramatic pause before “if I win” was followed by Trump pointing to the crowd and offering a big smile so that everyone knew that this was his punchline.

Trump also has a tendency to describe results of elections he doesn’t like as “rigged” or “stolen.” In a Jan. 25, 2017, interview<https://abcnews.go.com/Politics/transcript-abc-news-anchor-david-muir-interviews-president/story?id=45047602> with ABC News’ David Muir, Trump claimed without evidence that 3 million to 5 million illegal votes were cast in the 2016 election, more than the popular vote victory of his rival Hillary Clinton: “And I will say this, of those votes cast, none of ’em come to me. None of ’em come to me. They would all be for the other side.”

There are a few possible scenarios that could test whether Trump might try to remain in office even if he loses, a possibility raised first by national security expert Joshua Geltzer a year ago<https://www.cnn.com/2019/02/23/opinions/trump-contest-2020-election-loss-geltzer/index.html> and explored further<https://slate.com/news-and-politics/2019/09/joshua-geltzer-election-peaceful-transition-of-power-donald-trump.html> by Dahlia Lithwick and Geltzer in September.

For example, imagine if the 2020 election comes down again to Pennsylvania’s 20 Electoral College votes. Pennsylvania recently adopted a new law allowing for no-excuse absentee balloting. Election officials expect a crush of absentee ballots, which take longer to count. Trump declares victory when he is ahead in Pennsylvania on election night, but the results of the election would not be known for days<https://www.inquirer.com/politics/election/pennsylvania-2020-presidential-election-results-absentee-ballots-20200117.html>. There is reason to believe<http://files.www.lawandpolitics.org/content/vol-xxviii-no-4/Foley_Color_1110.pdf> that later-counted ballots tend Democratic, and it is possible that Trump’s lead would evaporate thanks to the “blue shift” of ballots<https://www.inquirer.com/politics/election/pennsylvania-2020-election-blue-shift-20200127.html?__vfz=medium%3Dsharebar>. Trump could claim that any change in the vote totals going against him is the result of Democratic “voter fraud,” an unsupported claim he has made dozens of times as well, focusing on heavily Democratic areas full of minority voters like Philadelphia.

This could happen in other states besides Pennsylvania, such as Michigan. Indeed, Michigan<https://www.detroitnews.com/story/news/local/detroit-city/2020/01/28/benson-detroit-clerk-press-early-absentee-ballot-processing/4596454002/> Secretary of State Jocelyn Benson and local election officials are trying to get permission to start the absentee ballot count early to prevent delays in announcing results.

We saw Trump try to prematurely call an election in 2018, as the Florida Senate and governor’s races came down to just a few thousand votes. He tweeted<https://perma.cc/GT7Q-8MRE>: “The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible—ballots massively infected. Must go with Election Night!” There was no proof of “massively infected” ballots or a dishonest vote count.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>

Good (?) Timing Department<https://electionlawblog.org/?p=109304>
Posted on February 4, 2020 5:54 am<https://electionlawblog.org/?p=109304> by Rick Hasen<https://electionlawblog.org/?author=3>

Me<https://twitter.com/rickhasen/status/1224574475477356545> on twitter last night:
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

<https://twitter.com/rickhasen/status/1224574475477356545>

OK when I made this my twitter header a few months ago I didn't mean it so literally
[View image on Twitter]<https://twitter.com/rickhasen/status/1224574475477356545/photo/1>
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67<https://twitter.com/intent/like?tweet_id=1224574475477356545>
10:04 PM - Feb 3, 2020<https://twitter.com/rickhasen/status/1224574475477356545>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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See Rick Hasen's other Tweets<https://twitter.com/rickhasen>

And<https://twitter.com/rickhasen/status/1224556394289995776>:
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<https://twitter.com/rickhasen>
Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

 · 9h<https://twitter.com/rickhasen/status/1224555253363855361>
<https://twitter.com/rickhasen/status/1224555253363855361>

Replying to @rickhasen<https://twitter.com/_/status/1224552249352949760>

The question is not why have there been so many messed up election counts but what can we do to minimize the chances that these problems call the high stakes November election into question? I tackle that in the final chapter of #ElectionMeltdown<https://twitter.com/hashtag/ElectionMeltdown?src=hash> https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr …<https://t.co/lo0GAyY1w3>
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Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy<https://t.co/lo0GAyY1w3>

From the nation’s leading expert, an indispensable analysis of key threats to the integrity of the 2020 American presidential election As the 2020 presidential campaign begins to take shape, there is...<https://t.co/lo0GAyY1w3>
amazon.com<https://t.co/lo0GAyY1w3>

[cid:image002.png at 01D5DB21.99782810]<https://twitter.com/rickhasen>
<https://twitter.com/rickhasen>
Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

Hey Iowa: The official release date of my #ElectionMeltdown<https://twitter.com/hashtag/ElectionMeltdown?src=hash> book is February 4, 8 minutes from now. This caucus app counting snafu by Democrats followed by unsubstantiated claims of vote rigging by Republicans is a bit too on the nose. https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr …<https://t.co/lo0GAyY1w3>
<https://t.co/lo0GAyY1w3>
[cid:image004.jpg at 01D5DB21.99782810]<https://t.co/lo0GAyY1w3>
Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy<https://t.co/lo0GAyY1w3>

From the nation’s leading expert, an indispensable analysis of key threats to the integrity of the 2020 American presidential election As the 2020 presidential campaign begins to take shape, there is...<https://t.co/lo0GAyY1w3>
amazon.com<https://t.co/lo0GAyY1w3>

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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“The Cybersecurity 202: Iowa caucus debacle shakes public confidence in 2020 security”<https://electionlawblog.org/?p=109302>
Posted on February 4, 2020 5:50 am<https://electionlawblog.org/?p=109302> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/02/04/the-cybersecurity-202-iowa-caucus-debacle-shakes-public-confidence-in-2020-security/5e385fcd88e0fa7f82543738/>:

The biggest security lesson from last night’s Iowa caucuses: It doesn’t take a hack for technology to undermine confidence in an election.

The spectacular failure of a mobile app that was supposed to forward caucus results last night — which are still not out, as of this morning <https://www.washingtonpost.com/politics/iowa-caucuses-2020-live-updates/2020/02/04/23561bd6-4707-11ea-bc78-8a18f7afcee7_story.html> — is a striking example of how faulty technology can spark questions about election results and create an opening for misinformation and conspiracy theories.

“These kinds of technical issues and operational delays play right into the game plan of malicious actors,” Maurice Turner, an election security expert at the Center for Democracy and Technology, told me. “[They] can leverage these small facts and turn them into viral misinformation messages speculating about hacking or corruption being behind the irregularities.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>

The Iowa Debacle<https://electionlawblog.org/?p=109300>
Posted on February 3, 2020 10:12 pm<https://electionlawblog.org/?p=109300> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/02/03/us/politics/iowa-democratic-caucus-primary.html>:

A night that was supposed to bring clarity to the Democratic presidential contest turned into a long ordeal of confusion and delays on Monday, as the Iowa Democratic Party failed to report results from more than a handful of precincts for hours after the state’s famed caucuses began.

Struggling to adopt a new byzantine process of tabulating results, Iowa Democrats offered little explanation for the problem for hours after the caucuses began. Eventually, not long before midnight on the East Coast, a spokeswoman for the state party said there was no issue with the integrity of the vote but it was taking longer than anticipated to collect and check the reported data for irregularities.

“This is simply a reporting issue, the app did not go down and this is not a hack or an intrusion,” said Mandy McClure, a spokeswoman for the Iowa Democratic Party. “The underlying data and paper trail is sound and will simply take time to further report the results.”

In the absence of hard results, election watchers in Iowa and across the country, who had eagerly been awaiting the start of the Democratic nominating process, had to make do with televised snippets of scenes from caucus sites, many of them playing out in messy fashion on college campuses and in local meeting halls and gymnasiums.

CNN<https://www.cnn.com/politics/live-news/iowa-caucuses-live-results-coverage-2020/index.html>:

Presidential campaigns have been told tonight to not expect any results from the Iowa caucuses until at some point on Tuesday, two officials tell CNN.

“At this point now they need to get it right,” one official said.

An Iowa Democratic official said results are still being collected now — and will be overnight if the precinct chairs keep calling them in. There was no estimated time given to campaigns

I had a tweet thread<https://twitter.com/rickhasen/status/1224548280379592704> with some thoughts in the context of election meltdowns, beginning here:
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

<https://twitter.com/rickhasen/status/1224548280379592704>

This is no way to run an election in Iowa or anywhere. As I‘ve been saying at #ElectionMeltdown<https://twitter.com/hashtag/ElectionMeltdown?src=hash> book events, you are much more likely to be disenfranchised by incompetence than voter suppression or fraud. https://twitter.com/bubbaprog/status/1224546956053295109 …<https://t.co/G1zlM9pTVL>
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Timothy Burke<https://twitter.com/bubbaprog/status/1224546956053295109>
✔@bubbaprog<https://twitter.com/bubbaprog/status/1224546956053295109>

You can officially blame CNN for the delay in results after this guy got hung up on because Wolf Blitzer wanted to listen in<https://twitter.com/bubbaprog/status/1224546956053295109>

<https://twitter.com/bubbaprog/status/1224546956053295109>
[Embedded video]<https://twitter.com/bubbaprog/status/1224546956053295109>

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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Conservatives spread false claims on Twitter about electoral fraud as Iowans prepare to caucus”<https://electionlawblog.org/?p=109298>
Posted on February 3, 2020 6:20 pm<https://electionlawblog.org/?p=109298> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/2020/02/03/conservatives-push-false-claims-voter-fraud-twitter-iowans-prepare-caucus/>:

The claims of electoral fraud were false, proved untrue by public data and the state’s top election official.

That didn’t stop them from going viral, as right-wing activists took to Twitter over the weekend to spread specious allegations of malfeasance on the eve of Iowa’s first-in-the-nation caucuses<https://www.washingtonpost.com/politics/iowa-caucuses-2020-latest-updates/2020/02/03/10e69dd0-463b-11ea-ab15-b5df3261b710_story.html?hpid=hp_hp-top-table-main_ticker-825am%3Aprime-time%2Fpromo&itid=hp_hp-top-table-main_ticker-825am%3Aprime-time%2Fpromo&tid=lk_inline_manual_3>.

The episode showcased the perils of conducting elections in the age of social media, where volume is more important than veracity.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Report about potential Iowa voter fraud is false”<https://electionlawblog.org/?p=109296>
Posted on February 3, 2020 6:08 pm<https://electionlawblog.org/?p=109296> by Rick Hasen<https://electionlawblog.org/?author=3>

Politifact reports.<https://www.politifact.com/factchecks/2020/feb/03/charlie-kirk/conservative-organizations-are-spreading-misinform/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Judicial Watch’s voter fraud fear-mongering finds a new opponent: A pro-voter-ID Iowa official”<https://electionlawblog.org/?p=109294>
Posted on February 3, 2020 6:04 pm<https://electionlawblog.org/?p=109294> by Rick Hasen<https://electionlawblog.org/?author=3>

Philip Bump WaPo analysis<https://www.washingtonpost.com/politics/2020/02/03/judicial-watchs-voter-fraud-fear-mongering-finds-new-opponent-pro-voter-id-iowa-official/>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

Wow: 11th Circuit Rejects State of Alabama’s Argument That Congress Did Not Intend to Allow Private Litigants to Be Able to Sue for Violation of Section 2 of the VRA, But Judge Branch Remarkably Dissents<https://electionlawblog.org/?p=109292>
Posted on February 3, 2020 5:55 pm<https://electionlawblog.org/?p=109292> by Rick Hasen<https://electionlawblog.org/?author=3>

Crazy news on the 150th anniversary of the Fifteenth Amendment.

States ordinarily have sovereign immunity against lawsuits without their consent. But Congress has the power to “abrogate” (or eliminate) that immunity through a statute. For decades, it has been unquestioned (and at least 2 Circuit courts have agreed) that Congress abrogated state sovereign immunity for lawsuits brought by DOJ or private plaintiffs to enforce Section 2, a key provision of the Voting Rights Act.

An 11th Circuit panel a<http://media.ca11.uscourts.gov/opinions/pub/files/201714443.pdf>greed that Congress did so in Section 2 of the VRA, rejecting the state of Alabama’s contrary argument.

But recently appointed 11th Circuit Judge Elizabeth Branch disagreed, saying Congress only abrogated the immunity when DOJ sues. Given that most Section 2 VRA suits are brought by private plaintiffs (the Trump DOJ has brought ZERO Section 2 cases so far), Judge Branch’s decision would essentially eliminate liability under Section 2 of the Act.

Just wow.

I wonder if Alabama will see if there are 5 votes at the Supreme Court for this position.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

“A Trump ally’s ‘$25,000 cash giveaway’ for black voters could mean legal trouble”<https://electionlawblog.org/?p=109290>
Posted on February 3, 2020 5:43 pm<https://electionlawblog.org/?p=109290> by Rick Hasen<https://electionlawblog.org/?author=3>

Donald Sherman WaPo oped<https://www.washingtonpost.com/outlook/2020/02/03/trump-allys-25000-cash-giveaway-black-voters-could-mean-legal-trouble/>.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, tax law and election law<https://electionlawblog.org/?cat=22>

“Voters need help: How party insiders can make presidential primaries safer, fairer, and more democratic”<https://electionlawblog.org/?p=109286>
Posted on February 3, 2020 2:17 pm<https://electionlawblog.org/?p=109286> by Richard Pildes<https://electionlawblog.org/?author=7>

Just in time for the start of caucus/primary season, Ray La Raja and Jonathan Rauch have this substantial essay<https://www.brookings.edu/research/voters-need-help-how-party-insiders-can-make-presidential-primaries-safer-fairer-and-more-democratic/> out from Brookings. Here is the summary and table of contents for the piece:

Summary

Presidential-nominating contests in both major political parties are at risk of producing nominees who aren’t competent to govern and/or don’t represent a majority of the party’s voters. Raymond La Raja and Jonathan Rauch argue this is a result of the declining role of party insiders in the nomination process and call for the reversal of that trend. Primaries function best, they claim, when voters and party professionals work in partnership.
Table of Contents
I. Introduction<https://www.brookings.edu/research/voters-need-help-how-party-insiders-can-make-presidential-primaries-safer-fairer-and-more-democratic/#part1>
II. The history of presidential primaries<https://www.brookings.edu/research/voters-need-help-how-party-insiders-can-make-presidential-primaries-safer-fairer-and-more-democratic/#part2>
III. Problems with the present process<https://www.brookings.edu/research/voters-need-help-how-party-insiders-can-make-presidential-primaries-safer-fairer-and-more-democratic/#part3>
IV. The promise of professional vetting<https://www.brookings.edu/research/voters-need-help-how-party-insiders-can-make-presidential-primaries-safer-fairer-and-more-democratic/#part4>
V. Proposed reforms<https://www.brookings.edu/research/voters-need-help-how-party-insiders-can-make-presidential-primaries-safer-fairer-and-more-democratic/#part5>
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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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