[EL] Trump Falsely and Prematurely Claims Victory in 2:30 AM ET Speech (message from David Lublin)

Wed Nov 4 15:54:53 PST 2020

Begin forwarded message:
From: David Lublin <dlublin at american.edu>
Date: November 4, 2020 at 6:21:04 PM EST
To: "Schultz, David" <dschultz at hamline.edu>
Cc: "Smith, Bradley" <BSmith at law.capital.edu>, Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Trump Falsely and Prematurely Claims Victory in 2:30 AM ET Speech
Maybe not to bring the discussion back fully to the law but towards a more intellectual debate.

Last night, Rick Pildes posted (in certainly understandable frustration) about the inability of Pennsylvania's Democratic governor and Republican legislature to get it together to arrange to count mail ballots in advance to help avoid bad outcomes despite a seemingly endless parade of editorials, op-eds and pressure to do just that with an entirely battery from Rick alone. It looks like we may just avoid the worst outcomes, though that's still not clear.

One could argue that this is merely yet another example of where scholars play the role of Cassandra only to be ignored by politicians and practitioners. It happens often enough.

I'd argue that this outcome is not so much a failure to fix a simple legal problem, though it is also that, but a symptom of the much deeper changes in our political system. We have two major parties but the Republicans have shifted dramatically in type. The Democrats remain a mainstream left-party party. The Republicans, however, have rapidly moved into becoming an illiberal right-wing party<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjQjNXy_ensAhXkl3IEHR9oB6sQFjAJegQIFBAC&url=https%3A%2F%2Fwww.v-dem.net%2Fmedia%2Ffiler_public%2Fb6%2F55%2Fb6553f85-5c5d-45ec-be63-a48a2abe3f62%2Fbriefing_paper_9.pdf&usg=AOvVaw2D7qpqYGysal0Jf1Fz4yP7>. (This is not meant here as "politicking" or casting aspersions but just factual). This leaves them in much closer company with parties like the BJP (India), Fidesz (Hungary), and Law & Justice (Poland) that are as illiberal and autocratic.

Put another way, the central problem is that one party no longer shares the basic commitment to American institutions in the same way as previously largely shared by both parties even as they debated serious policy differences. One colleague described the Republicans to me as "the disloyal opposition." As a result, fixes to basic problems like Rick wanted to solve are no longer possible. Short of allowing the Republicans to eliminate most mail dropoff boxes, as they demanded, I am not sure exactly what the Democratic governor could have done. The Republicans were surprisingly open that part of their goal was to allow the Trump campaign to make the claims and challenges that it is currently making or to cut down on Democratic votes directly.

This is the central problem that is not going to go away. I don't think the law alone can save us.

Electoral reforms that encourage more centrist candidates or a variety of congressional coalitions to emerge would be a start. Perhaps this could help attack the current partisan tribalism and give voters a range of options that better reflect their preferences than our two parties.

Best regards,
David

On Wed, Nov 4, 2020 at 5:00 PM Schultz, David <dschultz at hamline.edu<mailto:dschultz at hamline.edu>> wrote:
I tend to agree with Brad's comment here but want to push it further.  For too long on too many sides there has been way too much partisan chatter and petty political arguments tossed about here that clutter up the listserv.    Stick to the law folks and if you want to politick  do it eleswhere.

On Wed, Nov 4, 2020 at 3:55 PM Smith, Bradley <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
Maybe this is just me, but I wonder if perhaps we could keep the discussion on a little higher intellectual plane?

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of larrylevine at earthlink.net<mailto:larrylevine at earthlink.net> <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
Sent: Wednesday, November 4, 2020 4:26 PM
To: 'Fredric Woocher' <fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>>; 'Rick Hasen' <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>; 'Election Law Listserv' <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Trump Falsely and Prematurely Claims Victory in 2:30 AM ET Speech

** [ This email originated outside of Capital University ] **

It appears 1) Biden probably will win, 2) the country will be ungovernable as McConnell and the Republicans hold the Senate and create four years of gridlock, 3) half the country supported an incompetent, sexual predator and neo-fascist and will believe the election was stolen from him, and 4) Trump will continue to command media attention and a following as he foments dissension. Oh, happy day.

Larry

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Fredric Woocher
Sent: Wednesday, 4 November 2020 1:01 PM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>; Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Trump Falsely and Prematurely Claims Victory in 2:30 AM ET Speech

Is anyone else concerned that Trump’s fraud claims, recounts, and lawsuits are primarily intended to lay the groundwork for the strategy in which he tries to inject enough uncertainty into the validity of the vote count and to drag out the proceedings long enough for the Republican Legislatures in Wisconsin, Pennsylvania, or elsewhere appoint their own slate of electors for Trump?  This seems to be heading toward one of the nightmare scenarios gamed out by the election law scholars in advance of the election, no?

Fredric D. Woocher

Strumwasser & Woocher LLP

10940 Wilshire Blvd., Ste. 2000

Los Angeles, CA 90024

fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>

(310) 576-1233 x105

IMPORTANT NOTICE: Pursuant to the Governor’s “Stay at Home” Order, Strumwasser & Woocher LLP is CLOSED TO THE PUBLIC.  Packages requiring signatures will be returned undelivered – do not serve papers by this method.  While our office is closed, Strumwasser & Woocher LLP consents to electronic service in all of its matters.  Please serve by electronic mail to fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com> AND to our Senior Legal Assistant, LaKeitha Oliver, at loliver at strumwooch.com<mailto:loliver at strumwooch.com>.  We reserve the right to object to any notice or delivery of any kind if not actually received by counsel before all statutory deadlines.

From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, November 3, 2020 11:37 PM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] Trump Falsely and Prematurely Claims Victory in 2:30 AM ET Speech

https://twitter.com/rickhasen/status/1323890304529829889

waiting for the transcript

--

Rick Hasen

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http://electionlawblog.org<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f&c=E,1,ylgUrU6OjPnNzlpY-WzHrVyJxyLkMvCLgRVPzLaxglYWyfxCEjDY3gf0AyhoqTZ_ILtdA6xJfcjT3ygGrntqvgcfCCEJREF-NxupoavA&typo=1>

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David Schultz, Distinguished University Professor
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David Lublin
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American University
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