[EL] ELB News and Commentary 11/5/20

[Rick Hasen]

“Trump’s legal team scores small win, small losses in election fight”<https://electionlawblog.org/?p=118195>
Posted on November 5, 2020 12:19 pm<https://electionlawblog.org/?p=118195> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Gerstein<https://www.politico.com/news/2020/11/05/trumps-legal-team-win-loss-election-434360> for Politico:

President Donald Trump’s barrage of lawsuits related to the 2020 presidential election got off to a mixed start on Thursday, with his campaign winning closer access to ballot counting in Philadelphia but losing bids to invalidate a few dozen mail-in ballots in Georgia and for better access to counting in Michigan.

The initial flurry of suits did not appear capable of delivering a reelection victory to the president or even satisfying his repeated demands to stop the count. Instead, they seemed intended to create a cloud of legal uncertainty around the election and preserve a sense of viability around the campaign while Trump lawyers scramble for a strategy that could actually help him win.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118195&title=%E2%80%9CTrump%E2%80%99s%20legal%20team%20scores%20small%20win%2C%20small%20losses%20in%20election%20fight%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


PA Court Orders Segregation of Any Mail Ballots Where Voters Cure Missing Information After November 9<https://electionlawblog.org/?p=118193>
Posted on November 5, 2020 12:06 pm<https://electionlawblog.org/?p=118193> by Rick Hasen<https://electionlawblog.org/?author=3>

Not clear how many ballots will be involved here<https://twitter.com/johnkruzel/status/1324440873816514561/photo/1>, but if the election is very close there will be an all-out push to get voters to respond with information by the 9th.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118193&title=PA%20Court%20Orders%20Segregation%20of%20Any%20Mail%20Ballots%20Where%20Voters%20Cure%20Missing%20Information%20After%20November%209>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Michigan judge dismisses Trump campaign lawsuit over absentee ballots”<https://electionlawblog.org/?p=118191>
Posted on November 5, 2020 11:32 am<https://electionlawblog.org/?p=118191> by Rick Hasen<https://electionlawblog.org/?author=3>

PBS:<https://www.pbs.org/newshour/politics/michigan-judge-dismisses-trump-campaign-lawsuit-over-absentee-ballots>

A Michigan judge has dismissed a lawsuit by President Donald Trump’s campaign in a dispute over whether Republican challengers had access to the handling of absentee ballots.

Judge Cynthia Stephens noted that the lawsuit was filed late Wednesday afternoon, just hours before the last ballots were counted. She also said the defendant, Secretary of State Jocelyn Benson, was the wrong person to sue because she doesn’t control the logistics of local ballot counting, even if she is the state’s chief election officer.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118191&title=%E2%80%9CMichigan%20judge%20dismisses%20Trump%20campaign%20lawsuit%20over%20absentee%20ballots%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Georgia Judge Dismisses Trump Lawsuit Over Late Ballots”<https://electionlawblog.org/?p=118189>
Posted on November 5, 2020 11:25 am<https://electionlawblog.org/?p=118189> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg:<https://www.bloomberg.com/news/articles/2020-11-05/judge-dismisses-trump-campaign-suit-over-late-georgia-ballots>

A Georgia judge dismissed a lawsuit by President Donald Trump’s campaign that alleged dozens of late ballots were mingled with on-time ballots, dealing the latest blow to Republicans in a swing state that’s still too close to call.

“The court finds there is no evidence that the ballots referenced in the petition were received after 7 p.m. on Election Day, thereby making those ballots invalid,” Judge James Bass said in a ruling Thursday in Savannah, Georgia.

The suit related to about 50 ballots, according to the GOP’s petition, but the campaign had sought a court order directing all Georgia election officials to prevent late ballots from being counted. A ruling in Trump’s favor could have added weight to his unsupported claim of voter fraud involving mail-in ballots.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118189&title=%E2%80%9CGeorgia%20Judge%20Dismisses%20Trump%20Lawsuit%20Over%20Late%20Ballots%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Legal Scholars on the Importance of Counting Every Vote”<https://electionlawblog.org/?p=118187>
Posted on November 5, 2020 11:14 am<https://electionlawblog.org/?p=118187> by Rick Hasen<https://electionlawblog.org/?author=3>

Law Prof letter:<https://www.acslaw.org/expertforum/legal-scholars-on-the-importance-of-counting-every-vote/>

American history is replete with presidential elections that were not decided on Election Day. From the very first presidential election in 1788 through the 2016 election, having a sufficiently complete count of votes to confidently predict a winner on the same day that the polls close has been the exception, not the norm. That’s why all of us, who teach and write about constitutional law, election law, voting rights, and/or the rule of law, are signing this letter—reaffirming that it is deeply in line with, and not counter to, our finest traditions to count every vote, to take our time in doing so, and to not cast aspersions on the process simply because it is methodical….
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118187&title=%E2%80%9CLegal%20Scholars%20on%20the%20Importance%20of%20Counting%20Every%20Vote%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The final implosion of Trump’s Fox News propagandists”<https://electionlawblog.org/?p=118185>
Posted on November 5, 2020 11:10 am<https://electionlawblog.org/?p=118185> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Sargent:<https://www.washingtonpost.com/opinions/2020/11/05/final-implosion-trumps-fox-news-propagandists/>

With President Trump mounting a frantic, last-ditch effort to stop the counting of votes that could doom his reelection, his Fox News propagandists are wheeling into action: One after another, they are raging<https://www.cnn.com/2020/11/05/media/fox-news-prime-time-election/index.html> that the election is being stolen from Trump by all manner of chicanery and fraud.

In a way, this represents the perfect finale for them, because there may be no group of people alive who did more to construct the bubble of unreality that Trump bought into all throughout the past year.

In so doing, they had a big hand in creating the record and even the worldview — the themes and narratives and depiction of the state of the country and the true nature of the challenges it faces — on which he ended up staking his reelection.

Now they are engaged in a final rearguard effort to help prevent the American people from rendering their verdict on all of it in a free and fair election — to forestall that verdict on what they themselves wrought.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118185&title=%E2%80%9CThe%20final%20implosion%20of%20Trump%E2%80%99s%20Fox%20News%20propagandists%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Karl Rove Rejects Claims of Widespread Election Fraud<https://electionlawblog.org/?p=118183>
Posted on November 5, 2020 11:05 am<https://electionlawblog.org/?p=118183> by Rick Hasen<https://electionlawblog.org/?author=3>

More of this<https://www.rove.com/article/11-5-20-wsj> please:

There are suspicious partisans across the spectrum who believe widespread election fraud is possible. Some hanky-panky always goes on, and there are already reports of poll watchers in Philadelphia not being allowed to do their jobs. But stealing hundreds of thousands of votes would require a conspiracy on the scale of a James Bond movie. That isn’t going to happen.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118183&title=Karl%20Rove%20Rejects%20Claims%20of%20Widespread%20Election%20Fraud>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


President Trump Tweets “STOP THE COUNT” While Behind in the Electoral College Count As His Campaign Brings Small Bore Lawsuits: What’s Trump’s End Game If Race Called for Biden?<https://electionlawblog.org/?p=118179>
Posted on November 5, 2020 7:41 am<https://electionlawblog.org/?p=118179> by Rick Hasen<https://electionlawblog.org/?author=3>

Although things remain uncertain, it appears that Joe Biden could soon be declared by news organizations as the winner of the presidential race. This depends upon finishing the count in a number of key states including states where Trump is at the moment behind (Arizona, Nevada) and places where he is ahead (Georgia, Pennsylvania). This morning Trump tweeted<https://twitter.com/realDonaldTrump/status/1324353932022480896> “STOP THE COUNT,” which is not only inconsistent with what his team is pushing for in Arizona and Nevada; it would also lead to the race being called for Biden.

The inconsistent messaging is only part of the President’s problem. He and his supporters have been promoting baseless and dangerous conspiracy theories that Democratic elected officials are somehow “stealing” the vote when all they are doing is counting the ballots. Trump is doing exactly what many of us feared and warned about: using the fact that there is a “blue shift” in votes in some places as evidence of fraud. It is nonsense and the shift comes from the order in which ballots are processed. We saw a “red shift” as voting happened in Ohio on election night because of the order in which ballots were counted there. Nothing nefarious, but conspiracy theories proliferate, now being promoted heavi<https://www.nytimes.com/2020/11/04/us/politics/trump-twitter-labels.html>ly by Trump and his allies, leading to confrontations where election workers have been counting votes in Detroit<https://twitter.com/PattersonNBC/status/1324086177885003778> and in Maricopa County<https://www.nytimes.com/2020/11/04/us/politics/trump-supporters-protest-arizona.html>.

None of Trump’s small bore<https://electionlawblog.org/?p=118159> lawsuits<https://electionlawblog.org/?p=118167> have been able to stop the count, and of course there is no basis to do so. These lawsuits are tinkering on the edges claiming potentially minor infractions; nothing which would reverse any electoral college win for Biden. In none of the states where counting is done so far is it even slightly likel<https://electionlawblog.org/?p=118169>y that a recount would make a difference. Barring some evidence of systemic failure in the count in a state that is crucial for the electoral college vote, the vote count as it ends is likely to reflect the final electoral college results. (And this would be true too if Trump ekes out an electoral college win and Biden looks for places to contest.)

Trump’s litigation strategy is not created to lead to a difference in results unless PA is the decisive electoral college state and the vote count is so close that the result would depend upon those segregated ballots arriving 3 days after election day. Indeed, one could imagine just as easily TRUMP being behind in PA and wanting to have those ballots counted (and they should be counted<https://electionlawblog.org/?p=117382>, regardless of who is ahead or behind.)

If Trump loses, he may grumble and the country move on, or he can try to keep yelling fraud baselessly. If he does, it will be up to responsible voices in society, including Republican leaders, to tell him to accept defeat even if he will not formally concede. This is what happened when Matt Bevin lost<https://slate.com/news-and-politics/2019/11/matt-bevin-andy-beshear-trump-stolen-kentucky-election.html> the Kentucky governor’s race, yelling fraud on the way out but unable to convince Republicans in the state legislature to take the vote count away from the voters.

But the viral, false claims of an election being stolen by Democrats would be used by Trump and his supporters to undermine a Biden presidency and to further undermine voter confidence among the Trump base in the legitimacy of the election process, something I have been warning about in Election Meltdown <https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr> and elsewhere for some time. It is dangerous stuff to play with in a democracy, which depends upon losers accepting the results of an election as legitimate and agreeing to fight another day.

I have no doubt that if Biden loses he will concede after exhausting any legal avenues for contesting the vote. I have less confidence Trump would do so if he loses. The question is how the country moves on if Trump continues to rail baselessly against the vote count.

MORE from me in this thread.<https://twitter.com/rickhasen/status/1324166200474050562>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118179&title=President%20Trump%20Tweets%20%E2%80%9CSTOP%20THE%20COUNT%E2%80%9D%20While%20Behind%20in%20the%20Electoral%20College%20Count%20As%20His%20Campaign%20Brings%20Small%20Bore%20Lawsuits%3A%20What%E2%80%99s%20Trump%E2%80%99s%20End%20Game%20If%20Race%20Called%20for%20Biden%3F>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Fewer “Skinny Ballots” in Philly Than Feared<https://electionlawblog.org/?p=118177>
Posted on November 5, 2020 2:35 am<https://electionlawblog.org/?p=118177> by Richard Pildes<https://electionlawblog.org/?author=7>

These are comments<https://www.washingtonpost.com/lifestyle/style/philadelphia-vote-counting-ballots/2020/11/04/ea9169f4-1ee2-11eb-ba21-f2f001f0554b_story.html> from City Commission Chairwoman Lisa Deeley. She is the one who wrote the letter to state officials worrying that there could be 100,000 of these ballots statewide:

Tuesday, she was here to tell you, was an utter bore. The only hiccups were the few election workers who showed up late or forgot the key to the polling place. And the city has received about 3,000 naked ballots, far fewer than had been expected.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118177&title=Fewer%20%E2%80%9CSkinny%20Ballots%E2%80%9D%20in%20Philly%20Than%20Feared>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Armed Agents Are Allowed in Ballot-Counting Venues, Justice Dept. Tells Prosecutors”<https://electionlawblog.org/?p=118175>
Posted on November 4, 2020 7:36 pm<https://electionlawblog.org/?p=118175> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/11/04/us/politics/justice-department-armed-officers-election.html?referringSource=articleShare>

The Justice Department told federal prosecutors in an email early on Wednesday that the law allowed them to send armed federal officers to ballot-counting locations around the country to investigate potential voter fraud, according to three people who described the message.

The email created the specter of the federal government intimidating local election officials or otherwise intervening in vote tallying amid calls by President Trump to end the tabulating in states where he was trailing in the presidential race, former officials said.

A law prohibits<https://www.law.cornell.edu/uscode/text/18/592> the stationing of armed federal officers at polls on Election Day. But a top official told prosecutors that the department interpreted the statute to mean that they could send armed federal officers to polling stations and locations where ballots were being counted anytime after that.

The statute “does not prevent armed federal law enforcement persons from responding to, investigate, or prevent federal crimes at closed polling places or at other locations where votes are being counted,” the official, Richard P. Donoghue<https://www.justice.gov/opa/pr/attorney-general-william-p-barr-announces-appointment-richard-p-donoghue-principal-associate>, told prosecutors in an email that he sent around 1:30 a.m. on Wednesday.

A Justice Department spokeswoman did not respond to a request for comment.

Mr. Donoghue, the No. 2 official in the office of the deputy attorney general, Jeffrey A. Rosen, sent his email about half an hour before Mr. Trump made reckless claims<https://www.nytimes.com/2020/11/04/us/politics/2020-election-recap.html> including falsely declaring himself the winner of the election and began calling for election officials to stop counting ballots.

“We want all voting to stop,” Mr. Trump said at the White House. He said, without offering details, that his campaign would “be going to the U.S. Supreme Court” over the election count. The Trump campaign said later in the day that it was filing lawsuits in multiple states<https://www.nytimes.com/2020/11/04/us/politics/trump-election-courts.html>, including Michigan, to halt or protest vote counts.

One state election official vowed to resist any interference or intimidation efforts by federal officials.

“Elections are a state matter, and we have authority as state officials over anyone trying to enter locations where ballots are being counted,” said Attorney General Maura Healey of Massachusetts. “Anything else is a radical reinterpretation of the law. States can handle elections, and we will ensure the people decide the outcome.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118175&title=%E2%80%9CArmed%20Agents%20Are%20Allowed%20in%20Ballot-Counting%20Venues%2C%20Justice%20Dept.%20Tells%20Prosecutors%E2%80%9D>
Posted in chicanery<https://electionlawblog.org/?cat=12>, Department of Justice<https://electionlawblog.org/?cat=26>


“Viral ‘ballot’ burning video shared by Eric Trump is fake”<https://electionlawblog.org/?p=118173>
Posted on November 4, 2020 4:54 pm<https://electionlawblog.org/?p=118173> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN Business<https://www.cnn.com/2020/11/04/business/ballot-burning-fake-video/index.html>:

A viral video that purports to show about 80 “ballots,” all for Donald Trump, being burned is fake, Virginia Beach city officials say.The video, which surfaced on Tuesday, features a man with a plastic bag full of papers that look like ballots, which he doused with a flammable liquid and set aflame. The person, whose face is never shown, claims the 80 false “ballots” are “all for President Trump” on the video. Though the location is not discussed on the video, the races on the papers are from Virginia Beach, Virginia.

However, the ballots are not real. The city of Virginia Beach said the papers are clearly sample ballots, rather than official ballots, since they lack the “bar code markings that are on all official ballots,” according to a statement released on Tuesday afternoon. The statement showed an official ballot and compared it to a screenshot of the false video.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118173&title=%E2%80%9CViral%20%E2%80%98ballot%E2%80%99%20burning%20video%20shared%20by%20Eric%20Trump%20is%20fake%E2%80%9D>
Posted in cheap speech<https://electionlawblog.org/?cat=130>


New Trump Lawsuit in Georgia is Very Narrow<https://electionlawblog.org/?p=118171>
Posted on November 4, 2020 4:39 pm<https://electionlawblog.org/?p=118171> by Rick Hasen<https://electionlawblog.org/?author=3>

The suit<https://drive.google.com/file/d/1NUfEIDrcw7FI4auyhci_L8N1yrBXww9u/view> alleges that one county, Chatham County, was accepting absentee ballots that arrived after yesterday’s statutory deadline.

I have no idea yet if these allegations are true, but given the number of ballots likely at issue for President in Georgia, this is unlikely to be a big deal in the scheme of things.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118171&title=New%20Trump%20Lawsuit%20in%20Georgia%20is%20Very%20Narrow>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Updated Indispensable FairVote Report: “Election recounts rarely change the outcome”<https://electionlawblog.org/?p=118169>
Posted on November 4, 2020 4:18 pm<https://electionlawblog.org/?p=118169> by Rick Hasen<https://electionlawblog.org/?author=3>

This is so useful<https://www.fairvote.org/election_recounts_rarely_change_the_outcome> (now including 4 more years of data):

In the midst of a presidential election tabulation that could take days, with many states showing apparently close margins, it’s worth examining the impact of election recounts. FairVote has published an update to our report, A Survey and Analysis of Statewide Election Recounts<https://www.fairvote.org/a_survey_and_analysis_of_statewide_election_recounts>, including data on 20 years of recounts, from 2000 to 2019.

Our key finding is that recounts rarely change the outcome of the race, and margins tend to be exceptionally close in order for a change in outcome to be plausible. In the 5,778 statewide elections over the last 20 years, there have been 31 completed statewide recounts. Only three of those 31 recounts overturned the outcome of the race. In all three, the original margin of victory was less than 0.05%.

There have only been two statewide recounts in presidential elections over the last 20 years. The most memorable is perhaps the Florida recount in 2000, which lasted weeks and taught us all the term “hanging chad”. The other presidential recount occurred in 2016 in Wisconsin, at the request of Green Party candidate Jill Stein. Both recounts upheld the original victor and resulted in only small vote shifts. The Florida recount shifted the margin by 1,247 votes and the Wisconsin recount shifted the margin by 571 votes.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118169&title=Updated%20Indispensable%20FairVote%20Report%3A%20%E2%80%9CElection%20recounts%20rarely%20change%20the%20outcome%E2%80%9D>
Posted in recounts<https://electionlawblog.org/?cat=50>
--
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://electionlawblog.org<http://electionlawblog.org/>


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201105/f91baf97/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201105/f91baf97/attachment.png>