[EL] ELB News and Commentary 11/3/20 **ELECTION DAY***
John McCarthy
john at verifiedvoting.org
Tue Nov 3 14:37:48 PST 2020
+1 and amen!
John McCarthy
Verified Voting volunteer
On 11/3/2020 11:13 AM, Andy Kroll wrote:
> Just want to say, on this election day, how invaluable ELB and this
> listserv have been, Rick. Much gratitude for all the time and energy
> you put into these resources...
>
> Andy Kroll
> Rolling Stone
>
> On Tue, Nov 3, 2020 at 2:05 PM Rick Hasen <rhasen at law.uci.edu
> <mailto:rhasen at law.uci.edu>> wrote:
>
>
> “New Lawsuit to Halt Ballot Cures in Pennsylvania Could
> Preview Trump’s Postelection Strategy”
> <https://electionlawblog.org/?p=118135>
>
> Posted on November 3, 2020 10:53 am
> <https://electionlawblog.org/?p=118135>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> I have written this piece
> <https://slate.com/news-and-politics/2020/11/election-day-2020-gop-lawsuit-pennsylvania-ballot-cures.html>for
> /Slate/. It begins:
>
> /Republicans filed a new lawsuit in Pennsylvania on Tuesday, and
> it is a window into the kind of post-election maneuvering that we
> could see both legally and politically should the election come
> down to the Keystone State./
>
> /The big Pennsylvania litigation before today involved a decision
> of the state Supreme Court, relying on the state constitution, to
> extend the date for receipt of mailed ballots for three days given
> the pandemic, until Nov. 6. That lawsuit could still be revived
> <https://electionlawblog.org/?p=117694> after the election, and
> there could be a fight over whether those ballots should be
> counted. (There’s a very strong argument
> <https://electionlawblog.org/?p=117640> those ballots should be
> counted, but the votes have been cabined and some of the U.S.
> Supreme Court’s conservatives have signaled antipathy to the state
> court’s decision.) This is one of only a number of lawsuits that
> could pop up in a kind of trench warfare should the election be
> razor-thin in Pennsylvania. People often forget that there were
> over 20 lawsuits in Florida and not just /Bush v. Gore/
> <https://supreme.justia.com/cases/federal/us/531/98/> back in 2000./
>
> /This latest lawsuit
> <https://assets.documentcloud.org/documents/7281321/11-3-20-Barnett-v-Lawrence-Complaint.pdf> alleges
> that Montgomery County, Pennsylvania has been contacting voters
> who have voted by mail and whose ballots have a defect (like a
> missing signature) to give the voters a chance to fix (or “cure”)
> the problem. Not all the counties are doing so, and a Republican
> candidate whose district includes Montgomery argues that, under
> the Supreme Court’s /Bush v. Gore/ decision, it is a federal equal
> protection violation for some voters to be notified about curing
> their ballots and others not. They want the practice to stop and
> for ballots that were cured to not be counted./
>
> /The federal claim is really weak for three reasons…/
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118135&title=%E2%80%9CNew%20Lawsuit%20to%20Halt%20Ballot%20Cures%20in%20Pennsylvania%20Could%20Preview%20Trump%E2%80%99s%20Postelection%20Strategy%E2%80%9D>
>
> Posted inabsentee ballots <https://electionlawblog.org/?cat=53>
>
>
> “Failed Elections and the Legislative Selection of
> Presidential Electors” <https://electionlawblog.org/?p=118133>
>
> Posted on November 3, 2020 10:42 am
> <https://electionlawblog.org/?p=118133>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> Can’t wait to read this (hopefully not timely) one
> <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3714294> from
> Justin Levitt (forthcoming /NYU L. Rev./). Here is the abstract:
>
> /Questions about the state legislative role in determining the
> identity of presidential electors and electoral slates, and the
> permissible extent of a departure from regular legislative order,
> have recently reached peak prominence. Much of the controversy,
> including several cases to reach the Supreme Court, has concerned
> the constitutional delegation of power over pre-election rules.
> But a substantial amount of attention has also focused on the
> ability of state legislatures to appoint electors in the period
> between Election Day and the electors’ vote./
>
> /An asserted legislative role in the post-election period has two
> ostensible sources: one constitutional and one statutory. The
> constitutional provision — the portion of Article II allowing
> states to appoint electors in the manner the legislature directs —
> has received substantial scholarly and judicial attention. In
> contrast, there has been no prominent exploration of the federal
> statute, 3 U.S.C. § 2, despite text similar to the constitutional
> provision. This piece appears to represent the first exploration
> of that federal statute as an ostensible basis for legislative
> appointment of electors in the aftermath of an election, when that
> election has “failed to make a choice.” After reviewing the
> constitutional controversy, the essay canvasses the history of the
> statute and its context. And it discovers a previously unreported
> historical anomaly, which might well affect construction not only
> of the statutory text, but the constitutional predicate, in the
> event of a disputed presidential election./
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118133&title=%E2%80%9CFailed%20Elections%20and%20the%20Legislative%20Selection%20of%20Presidential%20Electors%E2%80%9D>
>
> Posted inelectoral college <https://electionlawblog.org/?cat=44>
>
>
> Federal Court Orders Immediate Sweep of USPS Facilities in
> Certain Areas Experiencing Mail Delays to Look for Mail
> Ballots <https://electionlawblog.org/?p=118131>
>
> Posted on November 3, 2020 10:02 am
> <https://electionlawblog.org/?p=118131>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> Order
> <https://twitter.com/johnkruzel/status/1323682172969062400?s=20>:
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118131&title=Federal%20Court%20Orders%20Immediate%20Sweep%20of%20USPS%20Facilities%20in%20Certain%20Areas%20Experiencing%20Mail%20Delays%20%20to%20Look%20for%20Mail%20Ballots>
>
> Posted inUncategorized <https://electionlawblog.org/?cat=1>
>
>
> Philadelphia District Attorney’s Office Calls “Deliberately
> Deceptive” Mike Roman’s Tweet That “Bad things are happening
> in Philly” (Roman Is Key Trump Campaign Person)
> <https://electionlawblog.org/?p=118129>
>
> Posted on November 3, 2020 9:28 am
> <https://electionlawblog.org/?p=118129>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> Tweet <https://twitter.com/philadao/status/1323644899967881219>:
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118129&title=Philadelphia%20District%20Attorney%E2%80%99s%20Office%20Calls%20%E2%80%9CDeliberately%20Deceptive%E2%80%9D%20Mike%20Roman%E2%80%99s%20Tweet%20That%20%E2%80%9CBad%20things%20are%20happening%20in%20Philly%E2%80%9D%20(Roman%20Is%20Key%20Trump%20Campaign%20Person)>
>
> Posted infraudulent fraud squad <https://electionlawblog.org/?cat=8>
>
>
> So Far, Only Minor Hiccups Reported with Election Day Voting
> Across U.S. <https://electionlawblog.org/?p=118127>
>
> Posted on November 3, 2020 9:08 am
> <https://electionlawblog.org/?p=118127>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> NBC News rounds up
> <https://www.nbcnews.com/politics/2020-election/election-day-2020-voters-battle-lines-malfunctioning-machines-misinformation-some-n1245963> the
> reports.
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118127&title=So%20Far%2C%20Only%20Minor%20Hiccups%20Reported%20with%20Election%20Day%20Voting%20Across%20U.S.>
>
> Posted inelection administration <https://electionlawblog.org/?cat=18>
>
>
> “Greater use of ranked choice voting backed by 5 Nobel
> Laureates, More” <https://electionlawblog.org/?p=118125>
>
> Posted on November 3, 2020 9:06 am
> <https://electionlawblog.org/?p=118125>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> FairVote blog
> <https://www.fairvote.org/greater_use_of_ranked_choice_voting_backed_by_5_nobel_laureates_more>.
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118125&title=%E2%80%9CGreater%20use%20of%20ranked%20choice%20voting%20backed%20by%205%20Nobel%20Laureates%2C%20More%E2%80%9D>
>
> Posted inalternative voting systems
> <https://electionlawblog.org/?cat=63>
>
>
> “Republicans publicly silent, privately disgusted by Trump’s
> election threats” <https://electionlawblog.org/?p=118123>
>
> Posted on November 3, 2020 8:56 am
> <https://electionlawblog.org/?p=118123>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> Politico:
> <https://www.politico.com/news/2020/11/03/republicans-trump-election-threats-433910>
>
> /Democrats have been clear in their condemnations of the
> president’s comments, which they consider the most worrisome of
> Trump’s four years in office, which were often marked by
> anti-democratic rhetoric./
>
> /“When Donald Trump says, ‘I think I deserve a third term, or I
> think the election should end on election night, that’s the way
> it’s always been,’ I don’t think he’s joking. I think we should
> take him deadly seriously,” said Democratic senator and top Joe
> Biden surrogate Chris Coons. He compared Trump’s statements to
> aspiring autocrats in young democracies that he dealt with when he
> was chairman of the Senate Foreign Relations Committee’s
> Subcommittee on African Affairs. “We would rally the international
> community and say, ‘No, you should not do that. It’s not a good
> idea. That violates the norms of democracy.’”/
>
> /But most Republicans, from critics to allies of Trump, have
> remained publicly silent. It’s not new for Trump’s party brethren
> to duck and cover when he says something troubling. But after five
> years of perfecting the art of explaining how they “didn’t see the
> tweet” — the much parodied talking point to which Republicans on
> Capitol Hill often resort — it is shocking but not surprising that
> they aren’t speaking up now, even when the integrity of America’s
> electoral system is under attack by their party’s leader…./
>
> /Sen. Ben Sasse didn’t respond to a DM. Chris Christie didn’t
> return a text. A message to the spokesman for Sen. Josh Hawley, an
> up-and-comer in the party, went unanswered. Sen. Lindsey Graham
> didn’t return a call after POLITICO left a voicemail for him.
> (Graham’s outgoing message offered the option of sending a fax but
> a reporter did not avail himself of that method of communication.)/
>
> /White House spokeswoman Alyssa Farah promised to call back but
> never did. Rudy Giuliani went silent, even though a reporter
> sweetened the deal by agreeing to hear him out on the Hunter Biden
> intrigue, a current Giuliani obsession. Karl Rove was kind enough
> to respond, but he was too busy to discuss the president’s
> comments sowing doubt and mistrust about the sanctity of the
> election process, because, he said, his “flight is getting ready
> to shut the door and pull away from the gate.”/
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118123&title=%E2%80%9CRepublicans%20publicly%20silent%2C%20privately%20disgusted%20by%20Trump%E2%80%99s%20election%20threats%E2%80%9D>
>
> Posted inUncategorized <https://electionlawblog.org/?cat=1>
>
>
> “Scoop: Generals privately brief news anchors, promise no
> military role in election” <https://electionlawblog.org/?p=118121>
>
> Posted on November 3, 2020 8:53 am
> <https://electionlawblog.org/?p=118121>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> Axios reports.
> <https://www.axios.com/milley-tv-anchors-call-military-no-election-role-1570714a-3532-4102-8f24-69fbd2d375e2.html?stream=top&utm_source=alert&utm_medium=email&utm_campaign=alerts_all>
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118121&title=%E2%80%9CScoop%3A%20Generals%20privately%20brief%20news%20anchors%2C%20promise%20no%20military%20role%20in%20election%E2%80%9D>
>
> Posted inUncategorized <https://electionlawblog.org/?cat=1>
>
>
> “Suspicious robocall campaign warning people to ‘stay home’
> spooks voters nationwide” <https://electionlawblog.org/?p=118119>
>
> Posted on November 3, 2020 8:51 am
> <https://electionlawblog.org/?p=118119>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> WaPo:
> <https://www.washingtonpost.com/technology/2020/11/03/robocall-election-day/>
>
> /An unidentified robocaller has placed an estimated 10 million
> calls in the past several weeks warning people to “stay safe and
> stay home,” spooking some Americans who said they saw it as an
> attempt to scare them away from the polls on Election Day./
>
> /The barrage of calls all feature the same short, recorded
> message: A computerized female voice says the message is a “test
> call” before twice encouraging people to remain inside. The
> robocalls, which have come from a slew of fake or unknown numbers,
> began over the summer and intensified in October, and now appear
> to have affected nearly every Zip code in the United States./
>
> /The reach and timing of the calls recently caught the attention
> <https://directory.youmail.com/directory/phone/3024656014> of
> YouMail, a tech company that offers a robocall-blocking app for
> smartphones, as well as some of the country’s top telecom
> carriers, which determined from an investigation that the calls
> may be foreign in origin and sophisticated in their tactics. Data
> from YouMail shows that the calls have reached 280 of the
> country’s 317 area codes since the campaign began in the summer./
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118119&title=%E2%80%9CSuspicious%20robocall%20campaign%20warning%20people%20to%20%E2%80%98stay%20home%E2%80%99%20spooks%20voters%20nationwide%E2%80%9D>
>
> Posted inchicanery <https://electionlawblog.org/?cat=12>
>
>
> Must-read from Ned Foley: “Closing Argument: All the
> President’s Bedlam” <https://electionlawblog.org/?p=118116>
>
> Posted on November 3, 2020 8:32 am
> <https://electionlawblog.org/?p=118116>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> You really need to read the whole thing:
> <https://thefulcrum.us/election-dissection/trump-election>
>
> /President Trump is talking about “bedlam”
> <https://www.washingtonpost.com/video/politics/trump-predicts-bedlam-after-election-slamming-supreme-court-decision/2020/10/31/690b1662-5c95-417e-8dc1-7140ded2437f_video.html> —
> and even “violence in the streets”
> <https://twitter.com/realDonaldTrump/status/1323430341512622080> —
> if results aren’t known on election night. In fact, he is trying
> to create bedlam where none exists. He’s seeking to precipitate
> enough discord and doubt to cause citizens to disbelieve in the
> vote-counting process./
>
> /There should be no bedlam in the counting of ballots. It’s a
> rather boring process, but it works very well./
>
> /For absentee and mailed ballots, election officials make sure
> that each ballot comes from an eligible and registered voter. That
> verification is a good thing; it assures the integrity of the
> election. That’s something Trump and his fellow Republicans who
> are concerned about fraud should be supporting, not bemoaning./
>
> /The process will naturally take time, even days
> <https://www.foxnews.com/politics/pennsylvania-days-to-count-overwhelming-majority-of-votes>,
> because of the large number of mailed ballots this year as a
> result of the pandemic. There is nothing wrong about this. Waiting
> for official results is a feature of the system, not a bug…./
>
> /It sounds as if Trump wants to derail the counting of ballots so
> that an accurate result can’t be reached. That’s the vote-counting
> version of Trump supporters trying to force a Biden campaign bus
> off the road. Never before has a sitting president openly called
> for a subversion of procedures in place for an orderly counting of
> ballots that citizens have a lawful right to cast./
>
> /Let’s be clear about the cause of concern. I’m not especially
> worried when the president says “as soon as [the] election is
> over, we are going in with our lawyers.” His lawyers must present
> evidence that will be evaluated on their merits according to the
> rule of law. That’s how it should be…./
>
> /What worries me more is the bedlam that Trump himself may cause
> outside the courts. The so-called “Brooks Brothers riot” in 2000
> shut down the recount in Miami-Dade County. While I don’t think it
> will be so easy to shut down the basic counting of ballots under
> state law, enough mischief could cause the process to run out of
> time. All state electors must cast their official votes for
> president on Monday, Dec. 14./
>
> /Apart from this risk, the gravest danger
> <https://www.nytimes.com/2020/10/28/opinion/trump-biden-election-scenarios.html> is
> throwing so much mud that the public gives up hope of knowing a
> fair and accurate result. Then a state legislature might try to
> repudiate the count of voters’ ballots and appoint its own electors./
>
> I offered some similar thoughts yesterday in a post, Still Not
> Normal and Deeply Disturbing: President Trump Falsely States That
> Supreme Court Ruling on Pennsylvania Ballots Will Lead to Cheating
> and “will also induce violence in the streets”
> <https://electionlawblog.org/?p=118099>
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118116&title=Must-read%20from%20Ned%20Foley%3A%20%E2%80%9CClosing%20Argument%3A%20All%20the%20President%E2%80%99s%20Bedlam%E2%80%9D>
>
> Posted inchicanery <https://electionlawblog.org/?cat=12>, Election
> Meltdown <https://electionlawblog.org/?cat=127>
>
>
> Some Voters Will Be Disenfranchised Because Their Ballots Will
> Arrive Late; While That Happens Every Year, It Is Worse Now
> Because of USPS Delays <https://electionlawblog.org/?p=118114>
>
> Posted on November 3, 2020 8:14 am
> <https://electionlawblog.org/?p=118114>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> The latest:
> <https://twitter.com/johnkruzel/status/1323643248263503874>
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118114&title=Some%20Voters%20Will%20Be%20Disenfranchised%20Because%20Their%20Ballots%20Will%20Arrive%20Late%3B%20While%20That%20Happens%20Every%20Year%2C%20It%20Is%20Worse%20Now%20Because%20of%20USPS%20Delays>
>
> Posted inUncategorized <https://electionlawblog.org/?cat=1>
>
>
> “Here are the voting lawsuits that could lead to post-election
> fights over ballots” <https://electionlawblog.org/?p=118112>
>
> Posted on November 3, 2020 8:10 am
> <https://electionlawblog.org/?p=118112>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> WaPo reports
> <https://www.washingtonpost.com/politics/2020/11/03/voting-lawsuits-ballot-counting/>.
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118112&title=%E2%80%9CHere%20are%20the%20voting%20lawsuits%20that%20could%20lead%20to%20post-election%20fights%20over%20ballots%E2%80%9D>
>
> Posted inUncategorized <https://electionlawblog.org/?cat=1>
>
>
> “Why Bush v. Gore Still Matters in 2020”
> <https://electionlawblog.org/?p=118109>
>
> Posted on November 3, 2020 7:36 am
> <https://electionlawblog.org/?p=118109>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> ProPublica reports
> <https://www.propublica.org/article/why-bush-v-gore-still-matters>.
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118109&title=%E2%80%9CWhy%20Bush%20v.%20Gore%20Still%20Matters%20in%202020%E2%80%9D>
>
> Posted inBush v. Gore reflections
> <https://electionlawblog.org/?cat=5>, Supreme Court
> <https://electionlawblog.org/?cat=29>
>
>
> Plaintiffs in Texas Voting Case File 5th Circuit Motion for an
> Emergency Injunction, Asking (for Now) Only for a Ban on the
> Practice on Election Day [Updated with 5th Circuit Denial But
> 9 of 10 Drive Thru Locations Closed]
> <https://electionlawblog.org/?p=118101>
>
> Posted on November 2, 2020 8:04 pm
> <https://electionlawblog.org/?p=118101>by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> Read the brief
> <https://drive.google.com/file/d/1CJhsGutHkyXKB5HAdUirGAXZcaNKuvPy/view>,
> asking for relief tonight, before Election Day, but limited:
> “Plaintiffs respectfully requests that this Court reverse the
> order below which found a lack of standing by Plaintiffs to
> challenge drive-thru voting on Election Day, and to issue a
> preliminary injunction banning drive-thru voting on Election Day,
> November 3, 2020.”
>
> My earlier coverage is here. <https://electionlawblog.org/?p=118097>
>
> Update: Here is the opposition
> <https://electionlawblog.org/wp-content/uploads/hotze-5th-opposition.pdf>.
>
> And Harris County Clerk is closing
> <https://twitter.com/ElizLanders/status/1323477782429634560> 9 of
> 10 drive-thru locations given this new uncertainty.
>
> Final update: Late last night the Fifth Circuit denied
> <https://twitter.com/johnkruzel/status/1323497904238219265/photo/1>the
> emergency request without comment.
>
> Share
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118101&title=Plaintiffs%20in%20Texas%20Voting%20Case%20File%205th%20Circuit%20Motion%20for%20an%20Emergency%20Injunction%2C%20Asking%20(for%20Now)%20Only%20for%20a%20Ban%20on%20the%20Practice%20on%20Election%20Day%20%5BUpdated%20with%205th%20Circuit%20Denial%20But%209%20of%2010%20Drive%20Thru%20Locations%20Closed%5D>
>
> Posted inabsentee ballots <https://electionlawblog.org/?cat=53>
>
> --
>
> 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://www.law.uci.edu/faculty/full-time/hasen/>
>
> http://electionlawblog.org <http://electionlawblog.org/>
>
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