[EL] "Without evidence"

[David O'Brien]

Here you go

On Wed, Nov 4, 2020 at 6:19 PM Steven Rosenfeld <srose14 at earthlink.net>
wrote:

> Anyone have a copy of the MI complaint filed today? This is the ID#:
>
>
> https://webinquiry.courts.michigan.gov/WISearchResults/ViewPage1?commoncaseid=827255
>
> SR
>
> On Nov 4, 2020, at 3:03 PM, John Tanner <john.k.tanner at gmail.com> wrote:
>
> 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:
>
> 
> 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.
>
> 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.”
>
>
>
> Jim
>
>
>
> ___________________________
>
> James A. Gardner
>
> Bridget and Thomas Black SUNY Distinguished Professor of Law
>
> Research Professor of Political Science
>
> University at Buffalo School of Law
>
> The State University of New York
>
> Room 514, O'Brian Hall
>
> Buffalo, NY 14260-1100
>
> voice: 716-645-3607
>
> fax: 716-645-2064
>
> e-mail: jgard at buffalo.edu
>
> www.law.buffalo.edu
>
> Papers at http://ssrn.com/author=40126
>
>
>
> *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
>
>
> 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 <https://electionlawblog.org/?p=118167>
>
> Posted on November 4, 2020 1:22 pm <https://electionlawblog.org/?p=118167>
>  by *Rick Hasen* <https://electionlawblog.org/?author=3>
> 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
> <https://electionlawblog.org/?p=118159> 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
> <https://twitter.com/JDiamond1/status/1324048219924553730?s=20>.
> Statewide recounts rarely work according to a Fairvote study
> <https://www.fairvote.org/recounts>, 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
> <https://twitter.com/johnkruzel/status/1324064046992293889>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
> <https://twitter.com/PattersonNBC/status/1324086177885003778>trying to
> stop the counting in Detroit. As Josh Barro says
> <https://twitter.com/jbarro/status/1324093850768576512>, “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
> <https://www.supremecourt.gov/DocketPDF/20/20-542/159651/20201104151441413_20-542%2020-574%20PA%20Mot%20to%20Intervene.pdf> 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.
> 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,
> <https://www.washingtonpost.com/opinions/2020/11/04/trump-wants-courts-stop-counting-hes-going-be-disappointed/>
>  Joey Fishkin
> <https://talkingpointsmemo.com/cafe/please-let-not-be-close-2020-presidential-outcome-probably-wont-decided-court>,
> 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.
>
>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118167&title=Trump%20Campaign%20Says%20It%20Will%20Seek%20Recount%20in%20Wisconsin%2C%20Sues%20in%20Michigan%20to%20Temporarily%20Stop%20Counting%2C%20Stages%20Brooks%20Brother%20Type%20Event%2C%20and%20Intervenes%20in%20PA%20Case%3A%20What%20It%20All%20Means>
> <image001.png>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118167&title=Trump%20Campaign%20Says%20It%20Will%20Seek%20Recount%20in%20Wisconsin%2C%20Sues%20in%20Michigan%20to%20Temporarily%20Stop%20Counting%2C%20Stages%20Brooks%20Brother%20Type%20Event%2C%20and%20Intervenes%20in%20PA%20Case%3A%20What%20It%20All%20Means>
>
> Posted in fraudulent fraud squad <https://electionlawblog.org/?cat=8>, Supreme
> Court <https://electionlawblog.org/?cat=29>
> “Trump wants the courts to stop the counting. He’s going to be
> disappointed.” <https://electionlawblog.org/?p=118165>
>
> Posted on November 4, 2020 1:04 pm <https://electionlawblog.org/?p=118165>
>  by *Rick Hasen* <https://electionlawblog.org/?author=3>
> Ned Foley WaPo oped:
> <https://www.washingtonpost.com/opinions/2020/11/04/trump-wants-courts-stop-counting-hes-going-be-disappointed/>
>
> *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….*
>
> *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.*
> *Courts often talk about reliance interests
> <https://barprephero.com/legal-terms/contracts/reliance-interest/> and have
> recognized that these are particularly important in the context of
> elections
> <https://www.scotusblog.com/educational-resources/due-process-and-election-administration/>:
> 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.*
>
>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118165&title=%E2%80%9CTrump%20wants%20the%20courts%20to%20stop%20the%20counting.%20He%E2%80%99s%20going%20to%20be%20disappointed.%E2%80%9D>
> <image001.png>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118165&title=%E2%80%9CTrump%20wants%20the%20courts%20to%20stop%20the%20counting.%20He%E2%80%99s%20going%20to%20be%20disappointed.%E2%80%9D>
>
> Posted in Supreme Court <https://electionlawblog.org/?cat=29>
> “Please Let It Not Be Close: Why 2020 Prez Outcome Probably Won’t Be
> Decided In Court” <https://electionlawblog.org/?p=118163>
>
> Posted on November 4, 2020 12:58 pm
> <https://electionlawblog.org/?p=118163> by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
> Joey Fishkin
> <https://talkingpointsmemo.com/cafe/please-let-not-be-close-2020-presidential-outcome-probably-wont-decided-court> for
> TPM Cafe.
>
>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118163&title=%E2%80%9CPlease%20Let%20It%20Not%20Be%20Close%3A%20Why%202020%20Prez%20Outcome%20Probably%20Won%E2%80%99t%20Be%20Decided%20In%20Court%E2%80%9D>
> <image001.png>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118163&title=%E2%80%9CPlease%20Let%20It%20Not%20Be%20Close%3A%20Why%202020%20Prez%20Outcome%20Probably%20Won%E2%80%99t%20Be%20Decided%20In%20Court%E2%80%9D>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
> “GOP effort to block ‘cured’ Pennsylvania ballots gets chilly reception
> from judge” <https://electionlawblog.org/?p=118161>
>
> Posted on November 4, 2020 8:50 am <https://electionlawblog.org/?p=118161>
>  by *Rick Hasen* <https://electionlawblog.org/?author=3>
> Politico:
> <https://www.politico.com/news/2020/11/04/gop-pennsylvania-blocking-ballots-lawsuit-434045>
>
> *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.*
>
> *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.*
>
> *“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?”*
>
>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118161&title=%E2%80%9CGOP%20effort%20to%20block%20%E2%80%98cured%E2%80%99%20Pennsylvania%20ballots%20gets%20chilly%20reception%20from%20judge%E2%80%9D>
> <image001.png>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118161&title=%E2%80%9CGOP%20effort%20to%20block%20%E2%80%98cured%E2%80%99%20Pennsylvania%20ballots%20gets%20chilly%20reception%20from%20judge%E2%80%9D>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
> Can Donald Trump Litigate His Way to Victory via the Supreme Court? Not
> Likely <https://electionlawblog.org/?p=118159>
>
> Posted on November 4, 2020 8:27 am <https://electionlawblog.org/?p=118159>
>  by *Rick Hasen* <https://electionlawblog.org/?author=3>
>
> 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.
>
> 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.
>
> 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).
>
> 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.
> 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.
>
>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118159&title=Can%20Donald%20Trump%20Litigate%20His%20Way%20to%20Victory%20via%20the%20Supreme%20Court%3F%20Not%20Likely>
> <image001.png>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118159&title=Can%20Donald%20Trump%20Litigate%20His%20Way%20to%20Victory%20via%20the%20Supreme%20Court%3F%20Not%20Likely>
>
> 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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>
> rhasen at law.uci.edu
>
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>
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>
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> Senior Counsel
> Fair Elections Center
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-- 
David O'Brien
Policy Counsel
Represent.Us <http://represent.us/>
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