[EL] "Without evidence"

Wed Nov 4 15:03:43 PST 2020

Well, there was evidence in the early returns.  Time will tell if his conclusion was accurate.  ( it wasn’t, I say with some evidence.)

Sent from my iPhone

> On Nov 4, 2020, at 5:58 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
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> 
> Strongly disagree.  I can tell when a statement is unsupported by evidence much more easily than I can tell state of mind.  Lying is deliberate and so I avoid it usually in my formulation unless state of mind evidence is obvious or available. 
> Rick Hasen
> Sent from my iPhone. Please excuse typos.
> From: Michelle Kanter Cohen <mkantercohen at fairelectionscenter.org>
> Sent: Wednesday, November 4, 2020 2:48:38 PM
> To: Gardner, James <jgard at buffalo.edu>
> Cc: Election Law Listserv <law-election at uci.edu>; Rick Hasen <rhasen at law.uci.edu>
> Subject: Re: [EL] "Without evidence"
>  
> Amen.
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> On Wed, Nov 4, 2020 at 5:39 PM Gardner, James <jgard at buffalo.edu> wrote:
> Rick’s top item in his latest posting reminds me that I would like to plead with academics and especially journalists to avoid reporting Trump’s statements as made “without evidence.”  To say that Trump makes claims “without evidence” is to suggest that he is saying something for which he does not presently have evidence, but that evidence supporting his claim might in principle exist, and eventually be put forward.  At least where his claims relate to voter fraud, he is not saying something “without evidence” because no evidence will ever be found in support of the claim.  The correct word to describe this is “lying,” or if you prefer, “fabricating.”
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> Jim
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> ___________________________
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> James A. Gardner
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> Bridget and Thomas Black SUNY Distinguished Professor of Law
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> Papers at http://ssrn.com/author=40126
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>  
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> From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Rick Hasen
> Sent: Wednesday, November 04, 2020 4:29 PM
> To: Election Law Listserv <law-election at uci.edu>
> Subject: [EL] More news and commentary 11/4/20
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>  
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> Trump Campaign Says It Will Seek Recount in Wisconsin, Sues in Michigan to Temporarily Stop Counting, Stages Brooks Brother Type Event, and Intervenes in PA Case: What It All Means
> Posted on November 4, 2020 1:22 pm by Rick Hasen
> 
> There have been a number of developments since I posted this morning, Can Donald Trump Litigate His Way to Victory via the Supreme Court? Not Likely After networks called Wisconsin for Biden with about a 20,000 vote lead and counting complete, the Trump campaign said it would seek a recount. The recount effort is highly unlikely to be successful, a point former Wisconsin Governor Scott Walker acknowledged. Statewide recounts rarely work according to a Fairvote study, shifting an average of 282 votes.
> The Trump campaign is also suing to try to temporarily stop the count in Michigan until additional procedures are put in place for observing the count. This lawsuit comes very late and is likely to be get the same judicial reception as the Nevada suit that lost in the Nevada Supreme Court unanimously. Allies of the campaign also engaged in a mini-Brooks Brothers riot trying to stop the counting in Detroit. As Josh Barro says, “Kind of a weird thing to do in a state where Trump is already trailing in the count.” Of course in Nevada and Arizona, where the campaign is behind, the Trump campaign is pushing to extend the count and make sure every last vote is counted.
> The Trump campaign also just filed in the Supreme Court to intervene in the already existing dispute over ballots arriving over the next three days pursuant to the Pennsylvania Supreme Court order. No doubt there will be a request from one of the parties to have those ballots (which have been segregated) not included in the final count.
> What to make of all of this activity? First, the effort is to slow the vote in places where the Trump campaign is behind so that these states are not called for Biden leading to a call of the Presidency for him should Biden reach 270 votes. Optically that makes it very hard for Trump. The concomitant effort is to push for further counting where Trump is behind to help him reach 270.
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> On top of that, the hope is that these Hail Mary legal plays could lead to court intervention to throw out votes and help Trump capture one of these states. This is possible but very unlikely for reasons Ned Foley, Joey Fishkin, and I have all given.
> Finally, and most disturbingly, the effort is perhaps one to cast doubt on the legitimacy of a Biden presidency should he win. We always knew Trump would claim without evidence that fraud cost him the election. These suits let him pile up what might appear to some supporters as evidence but are actually unsupported assertions of illegality.
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> <image001.png>
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> Posted in fraudulent fraud squad, Supreme Court
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> “Trump wants the courts to stop the counting. He’s going to be disappointed.”
> Posted on November 4, 2020 1:04 pm by Rick Hasen
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> Ned Foley WaPo oped:
> President Trump can rail as much as he likes, but he can’t stop the counting of valid votes. And while he is threatening to race to the Supreme Court to overturn any result against him, that, too, is likely to be a losing play — even with the bolstered conservative majority….
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> But even if the court were to agree with the Republicans on their federal constitutional claim, it is doubtful that a majority of justices — having allowed the state court extension to remain in place — would also agree to invalidate ballots that benefited from the extra time.
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> Courts often talk about reliance interests and have recognized that these are particularly important in the context of elections: the ability of voters to know what the rules of the road are and to act accordingly. Voters who relied on the state Supreme Court’s ruling were complying with the law as it existed and they reasonably understood it. The justices could correct the state Supreme Court’s error for the future and still let these ballots be counted.AD
> That would be a wise way out for conservative justices. Neither the court nor the country would benefit from the justices once again intervening to determine the presidency — no matter how loudly Trump demands it.
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> <image001.png>
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> Posted in Supreme Court
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> “Please Let It Not Be Close: Why 2020 Prez Outcome Probably Won’t Be Decided In Court”
> Posted on November 4, 2020 12:58 pm by Rick Hasen
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> Joey Fishkin for TPM Cafe.
> <image001.png>
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> Posted in Uncategorized
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> “GOP effort to block ‘cured’ Pennsylvania ballots gets chilly reception from judge”
> Posted on November 4, 2020 8:50 am by Rick Hasen
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> Politico:
> A federal judge gave a skeptical reception Wednesday to a Republican lawsuit seeking to throw out votes in a Pennsylvania county that contacted some voters to give them an opportunity to fix — or “cure” — problems with their absentee ballots.
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> During a morning hearing in Philadelphia, U.S. District Court Judge Timothy Savage said he was dubious of arguments from a lawyer for GOP congressional candidate Kathy Barnette, who argued that the Pennsylvania Supreme Court had concluded that the law prohibits counties from allowing voters who erred in completing or packaging their mail-in ballots to correct those mistakes.
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> “I’m not sure about that,” said Savage, an appointee of President George W. Bush. “Is that exactly what was said or is what was said was that there is no mandatory requirement that the election board do that?….Wasn’t the legislative intent of the statute we are talking about to franchise, not disenfranchise, voters?”
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> <image001.png>
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> Posted in Uncategorized
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> Can Donald Trump Litigate His Way to Victory via the Supreme Court? Not Likely
> Posted on November 4, 2020 8:27 am by Rick Hasen
> 
> I’ve been saying consistently that the only way the 2020 presidential election ends up being decided by the courts is if there is a dispute in a state that is central to an electoral college victory and that the dispute in that state is so close (or there is such a massive failure in the election) that the election is within the margin of litigation.
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> As of this moment (though things can change) it does not appear that either condition will be met. It does not seem that Pennsylvania will be crucial to a Biden electoral college victory and so any litigation over ballots there would not matter.
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> Even if it came down to Pennsylvania, it would have to be so close that there would be something to litigate over. If it is tens of thousands of votes separating the candidates (as currently in the Michigan totals), it is virtually impossible that a recount or litigation could change an outcome.
> 
> Of course, if it does come down to a state like PA and it comes down to ballots arriving between Nov. 3 and 6, the Republicans can go back to the Supreme Court in an attempt to get those thrown out. For reasons I’ve explained, the reliance interest of the voters makes this very unlikely (and the Supreme Court passed up two chances to act on this).
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> The other lawsuits in PA don’t seem to present much hope for flipping a lot of votes; they involve what appears to be a relatively small number of provisional ballots.
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> So could the election be litigated to a conclusion? Sure. But it’s not likely unless there is significant tightening in both the electoral college projections and the absolute margin in a key state.
> <image001.png>
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> Posted in Uncategorized
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