[EL] Trump Falsely and Prematurely Claims Victory in 2:30 AM ET Speech (message from David Lublin)
Kelner, Robert
rkelner at cov.com
Thu Nov 5 04:54:57 PST 2020
That’s very helpful context. It’s worth noting that allowing voters to change their votes prior to Election Day is one way to mitigate the adverse consequences of early voting, in which those who vote early may not be able to take account of late developments in the campaign. So there is a policy trade-off in choosing to allow or disallow early counting, at least in states that allow voters to change their vote before Election Day.
Sent from my iPhone
On Nov 5, 2020, at 5:21 AM, Derek Muller <derek.muller at gmail.com> wrote:
[EXTERNAL]
I'm not sure why it's claimed that it was the "resistance of the Republican legislature[] in MI." There is a longstanding and, in my view, legitimate policy dispute in Michigan on this topic, predating the pandemic<https://www.detroitnews.com/story/news/local/detroit-city/2020/01/28/benson-detroit-clerk-press-early-absentee-ballot-processing/4596454002/>. Michigan allows you to spoil absentee ballots up until the day before the election. (Michigan just this year had more than 77,000 spoiled ballots for a variety of reasons<https://www.freep.com/story/news/politics/elections/2020/11/03/michigan-spoiled-ballots-election/6145212002/>.) Processing ballots before Election Day prevents voters from being able to spoil their ballots. Last year, Secretary of State Jocelyn Benson proposed allowing clerks to begin processing ballots the Friday before Election Day<https://www.detroitnews.com/story/news/local/michigan/2019/03/06/benson-pushes-early-counting-absentee-ballots-other-changes/3081439002/> (i.e., four days before Election Day). Michigan's former Secretary of State, Ruth Johnson, introduced SB 757<http://legislature.mi.gov/doc.aspx?2020-SB-0757> earlier this year (agan, pre-pandemic) to allow processing on the Monday before (i.e., the day before) Election Day. During the pandemic, the bill was amended to expand from 8 hours of pre-processing time to 10 hours, and from cities larger than 40,000 to cities larger than 25,000; and it shortened the period of time voters could spoil the ballot from 4 p.m. the day before to 10 a.m. the day before, which allowed for this 10 hours of pre-processing. This bill was enacted by the legislature and signed by the governor.
So, what's more important, voter choice to spoil ballots in the relatively rare instances a voter wants to change her mind before Election Day? Or swift processing and counting of ballots to ensure public confidence in prompt results? I know states are increasingly moving toward the latter. I don't begrudge them. The Michigan legislature made a step in the direction of that latter result. But I think the policy tradeoffs, particularly to change existing longstanding policy in a state (as opposed to those states that didn't allow spoilage at all), are worth considering, particularly as Michigan did actively consider those trade-offs when fashioning what ended up as a bipartisan (if partial and temporary) legislative consensus this year.
Derek
Derek T. Muller
Professor of Law
University of Iowa College of Law
Iowa City, Iowa 52242
SSRN:http://papers.ssrn.com/author=464341
Twitter:http://twitter.com/derektmuller
On Wed, Nov 4, 2020 at 6:37 PM Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
It seems to me the resistance of Republican legislatures in MI, WI, and PA was precisely to help engineer what we are seeing right now: a delayed count which gives the Trump campaign a chance to try some way to reverse outcomes. (I don't think that's going to work, but I think that's the motivation.)
I know Rick P. has repeatedly blamed PA Gov. Wolf for not compromising with Republican legislative leaders in PA. I don't have an opinion on that as I haven't looked closely at it. I don't know what role the WI and MI governors played in the process in those states either.
On 11/4/20, 4:33 PM, "Law-election on behalf of Paul Gronke" <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> on behalf of paul.gronke at gmail.com<mailto:paul.gronke at gmail.com>> wrote:
David
I like a lot of what you say, but I'm still with Rick Pildes on this
one, because there is no reason to oppose allowing locals to PROCESS
absentee ballots starting the morning of Election Day (as in MI) or
the day before (as in a number of states). I don't understand how this
can be viewed as benefitting one party or another.
Maybe this is what an illiberal party does, just opposes change of any
kind, or opposes any sort of agreement with the other side.
I tend to think it was such a heated political environment that the
Republicans in the Legislature got nervous or were cowed by national
leaders or just didn't want to think about it.
Regardless, here's hoping that PA and many other states learn and
reform after the dust settles.
On Wed, Nov 4, 2020 at 3:56 PM Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
>
>
> Begin forwarded message:
>
> From: David Lublin <dlublin at american.edu<mailto:dlublin at american.edu>>
> Date: November 4, 2020 at 6:21:04 PM EST
> To: "Schultz, David" <dschultz at hamline.edu<mailto:dschultz at hamline.edu>>
> Cc: "Smith, Bradley" <BSmith at law.capital.edu<mailto:BSmith at law.capital.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
>
> Maybe not to bring the discussion back fully to the law but towards a more intellectual debate.
>
>
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> 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.
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> 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.
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> 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. (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.
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> 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.
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> This is the central problem that is not going to go away. I don't think the law alone can save us.
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> 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.
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> Best regards,
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> David
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> On Wed, Nov 4, 2020 at 5:00 PM Schultz, David <dschultz at hamline.edu<mailto:dschultz at hamline.edu>> wrote:
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> 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.
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> 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
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> 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 ] **
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>
>
> 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
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>
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>
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> 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
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> Strumwasser & Woocher LLP
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> From: Law-election [mailto:law-election-bounces at department-lists.uci.edu<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
>
>
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