[EL] ELB News and Commentary 11/6/20

[Rick Hasen]

Pildes: “Trump Can Try, but the Courts Won’t Decide the Election”<https://electionlawblog.org/?p=118213>
Posted on November 5, 2020 7:59 pm<https://electionlawblog.org/?p=118213> by Rick Hasen<https://electionlawblog.org/?author=3>

Rick Pildes in the NYT:<https://www.nytimes.com/2020/11/05/opinion/trump-lawsuits-courts-election.html?action=click&module=Opinion&pgtype=Homepage>

It is hard to know the true motivation behind these new lawsuits. They could be all sound and fury, an effort to appease the president and his troops, demonstrating that the campaign is fighting to the last dawn. On the other hand, they may be less about their individual claims, or about winning in court, and more the start of a plan to attempt to sow confusion, to generate a sense of chaos, to undermine the perceived integrity of the vote — even to set up later tactics.

My guess is that courts will make quick work of these new cases. At the time of the 2000 election, only half of registered voters believed<https://www.pewresearch.org/politics/2020/08/13/views-of-the-2020-campaign-and-voting-in-november/> it “really mattered” which candidate won the election. Today, 83 percent have that conviction. Few judges are going to believe it is good for the country or the courts for this election to be decided by anyone other than the voters.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump stages corrosive attempt to undermine votes as his path to 270 evaporates”<https://electionlawblog.org/?p=118211>
Posted on November 5, 2020 7:05 pm<https://electionlawblog.org/?p=118211> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/11/05/politics/donald-trump-election-2020/index.html>:

President Donald Trump<http://www.cnn.com/specials/politics/president-donald-trump-45> staged a corrosive and potentially dangerous attempt at undermining the US election on Thursday, baselessly claiming the presidency was being stolen from underneath him as vote counts showed his path to victory disappearing.

Standing at the White House podium, the President repeated false claims that a count of legally cast ballots would show him winning against former Vice President Joe Biden<https://www.cnn.com/election/2020/candidate/biden>. He complained that in certain states where he had been leading on election night, tallies have been “whittled down” or have shown his rival leading.

Using the briefing room to espouse baseless claims he is being deprived a second term by fraud, Trump thrust into question the democratic notion of a peaceful transition of power should Biden win. Instead he suggested he would fight in the courts until the election is decided in his favor.

“This is a case where they’re trying to steal an election, they’re trying to rig an election, and we can’t let that happen,” Trump said in a dour monotone, providing no evidence and departing the room without answering for his false claims..

The spectacle, though foreshadowed by the President for months, was nevertheless a sign of Trump’s unwillingness to cede the White House without a prolonged battle. Even as he complained that his own race had been rigged, Trump used the occasion to trumpet down-ballot wins by Republicans without explaining why those races wouldn’t be similarly afflicted by his claims of fraud.

His message came as new tallies show his lead dwindling in Georgia and Pennsylvania, where mail-in ballots are still being counted.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Must-Read NY Times on Trump’s Baseless Voter Fraud Claims: “The Disinformation Is Coming From Inside the White House”<https://electionlawblog.org/?p=118209>
Posted on November 5, 2020 6:56 pm<https://electionlawblog.org/?p=118209> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/11/05/us/politics/trump-white-house-disinformation.html>

A disinformation push to subvert the election is well underway, and it is coming straight from President Trump and his allies. The goal: to somehow stop a victory by former Vice President Joseph R. Biden Jr., or, failing that, undermine his legitimacy before he can take office.

Mr. Trump’s false declaration of victory in the small hours of Wednesday morning quickly united hyperpartisan conservative activists and the standard-bearers of the right-wing media, such as Breitbart, with internet trolls and QAnon supporters behind a singular viral message: #StopTheSteal.

But its impact has become apparent far beyond the internet, with the theme dominating conservative talk radio and the prime-time lineup on Fox News. There, Trump-aligned hosts pressed the false notion that the vote counting in the crucial, still-undecided states was illegitimate — the sort of message that was drawing flags on Twitter and Facebook but flourishing elsewhere.

“How big of a mistake is it for the Democrats to have kind of a burn-it-all-down approach,” Laura Ingraham asked on her program Wednesday night, “to destroy the integrity of our election process with this mail-in, day-of-registration efforts, counting after the election’s over — dumping batches of votes a day, two days, maybe even three days after the election?”

The messaging was far blunter from the president himself, who used a Thursday evening briefing at the White House to reel off a series of baseless attacks on an election system he described as “rigged” by Democrats trying to “steal an election.” It was the continuation of a diatribe he had started earlier in the day with a tweet reading “STOP THE FRAUD!” that Twitter quickly flagged as containing information that “might be misleading.”

Mr. Trump and his campaign aides had long indicated that they would challenge any unwelcome result with charges that the election was being stolen through “voter fraud,” which is in fact exceedingly rare.

On Thursday, senior aides to Mr. Biden portrayed the disinformation push as part of a desperate, coordinated campaign that, in tandem with the president’s legal strategy to press lawsuits against election officials across the country, was intended to halt a count that seemed likely to end Mr. Trump’s presidency.

“This is part of a broader misinformation campaign that involves some political theater,” Bob Bauer, a senior adviser to Mr. Biden, told reporters. “All of this is intended to create a large cloud that it is the hope of the Trump campaign that nobody can see through. But it is not a very thick cloud, it’s not hard to see what they’re doing — we see through it; so will the courts, and so will election officials.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


PA State Senate Majority Leader Takes Off the Table the Idea of the PA Legislature Trying to Appoint Presidential Electors Directly<https://electionlawblog.org/?p=118207>
Posted on November 5, 2020 6:47 pm<https://electionlawblog.org/?p=118207> by Rick Hasen<https://electionlawblog.org/?author=3>

Good to hear this,<https://twitter.com/rw_briggs/status/1324434235374116865?s=20> even though I think this gambit is extremely unlikely to happen (despite worries of Barton Gellman and others):
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


My Appearance on the PBS News Hour: “An election law expert on what he sees in Trump’s lawsuits”<https://electionlawblog.org/?p=118205>
Posted on November 5, 2020 6:39 pm<https://electionlawblog.org/?p=118205> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here or read a transcript.<https://www.pbs.org/newshour/show/an-election-law-expert-on-what-he-sees-in-trumps-lawsuits>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Trump loyalists are driving his campaign’s legal efforts to challenge ballots”<https://electionlawblog.org/?p=118203>
Posted on November 5, 2020 6:36 pm<https://electionlawblog.org/?p=118203> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/trump-legal-strategy-2020/2020/11/05/9eb2d7e2-1f88-11eb-90dd-abd0f7086a91_story.html>

In 2000, when George W. Bush and Vice President Al Gore were deadlocked in the Florida vote for president, a high-powered team of legal experts flocked south to lead Bush’s ultimately successful strategy to prevail in a recount, guided by the Republican Party’s premier strategist of the time, former secretary of state James Baker.

This year, as President Trump’s campaign mounts a multistate effort to challenge the counting of ballots around the country, many of the GOP’s preeminent election-law litigators remain on the sidelines.

Instead, the legal team driving the efforts under the leadership of deputy campaign manager Justin Clark includes longtime Trump loyalists and the president’s personal attorneys. Among them: Jay Sekulow, the conservative lawyer who defended the president during the special counsel probe and the impeachment process, and William Consovoy, an experienced Supreme Court litigator who has led the efforts in New York courts to withhold the president’s tax returns from investigators.

In public, the legal maneuvers are being touted by some of the president’s most combative and unpredictable allies, including former New York mayor Rudolph W. Giuliani, former campaign manager Corey Lewandowski and Richard Grenell, Trump’s former acting director of national intelligence, as well as by Trump’s son Eric, an executive at his father’s development company, and former Florida attorney general Pam Bondi.

Their aggressive strategy, in which the campaign has sought to question the ballot count in five battleground states, has confronted some early setbacks, including the rejection by judges Thursday of its lawsuits in Michigan and Georgia.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


OSCE Issues Preliminary Reports on Observation of 2020 U.S. Elections<https://electionlawblog.org/?p=118200>
Posted on November 5, 2020 2:04 pm<https://electionlawblog.org/?p=118200> by Rick Hasen<https://electionlawblog.org/?author=3>

The report begins<https://electionlawblog.org/wp-content/uploads/ODIHR-EOM-to-the-USA_2020_PS.pdf>:

 The 3 November general elections were competitive and well managed despite legal uncertainties and logistical challenges. In a highly polarized political environment, acrimonious campaign rhetoric fuelled tensions. Measures intended to secure the elections during the pandemic triggered protracted litigation driven by partisan interests. Uncertainty caused by late legal challenges and evidence-deficient claims about election fraud created confusion and concern among election officials and voters. Voter registration and identification rules in some states are unduly restrictive for certain groups of citizens. The media, although sharply polarized, provided comprehensive coverage of the campaign and made efforts to provide accurate information on the organization of elections. Arrangements put in place by the election administrators, including for early and postal voting, together with committed civic engagement, allowed for high voter participation despite challenges posed by COVID-19 pandemic. Counting and tabulation is ongoing and should continue in accordance with the law and OSCE commitments. Baseless allegations of systematic deficiencies, notably by the incumbent president, including on election night, harm public trust in democratic institutions.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Very Few Votes Coming in After Nov. 3 in One PA County<https://electionlawblog.org/?p=118198>
Posted on November 5, 2020 12:49 pm<https://electionlawblog.org/?p=118198> by Rick Hasen<https://electionlawblog.org/?author=3>

As I’ve said, litigation at the Supreme Court over late arriving ballots in PA could still happen, but it would be unlikely to involve enough ballots to make the difference unless we have a race as close as Florida 2000. Here’s one data point. So far, in Erie, there are only 60 such ballots so far<https://twitter.com/JonathanTamari/status/1324434343276748801?s=20> (they could come in as late as tomorrow under the PA Supreme Court order that’s been challenged).
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“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.
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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.
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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.
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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.
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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….
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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.
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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.
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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
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/>

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