[EL] Networks call for Biden: What's next? / ELB News and Commentary 11/7/20

Sat Nov 7 08:43:16 PST 2020

Breaking: Networks Call Election for Biden: What Happens Now with Trump, and His Litigation? Republicans Need to Step Up and Confirm Integrity of the Election<https://electionlawblog.org/?p=118292>
Posted on November 7, 2020 8:38 am<https://electionlawblog.org/?p=118292> by Rick Hasen<https://electionlawblog.org/?author=3>

As I write this, some decision desks have called the election for Biden. I expect others will soon follow suit, and the math indicates a Biden win. The results will not be official until January, when Congress counts electoral college votes. Before that, states will complete their counting, and in some places (such as Georgia) there may be automatic recounts before there is certification.

There could also be more litigation before certification in each state, but it is extremely unlikely to change the result for reasons I and others have explained. None of the lawsuits are likely to succeed: almost none go to the vote count, and the one in PA would only matter if the election were close enough that late counting ballots would make a difference. They won’t, based on everything we know. The other lawsuits are just tinkering around the edges. Recounts at the statewide level are extremely unlikely to change election outcomes, and not in enough states to change the electoral college results.

President Trump now has a choice to make. He could graciously concede, as Presidents Carter and George H.W. Bush did when they lost after one term. I don’t expect it to happen. At best he will grumble and continue to claim the election was stolen from him. At worst, he will try to undermine a Biden presidency by continuing to spread false and malicious claims that the election was stolen and that there was fraud.

And that means that other Republicans have a choice to make too. I would like to see Mitch McConnell quickly come out and accept the election results, and others as well, including George W. Bush. Peaceful transitions of power require losers to accept election results as legitimate and move on to fight another day. Trump may not do that, but other responsible voices must do so.

The country needs healing and voices across the political spectrum need to squash down the disgusting and unsupported claims that the election is stolen. Full stop. It is dangerous to democracy.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
I Talk to Dahlia Lithwick on the New Slate Amicus Podcast on the Election, the, State of Election Litigation, and Voting Rights Going Forward<https://electionlawblog.org/?p=118290>
Posted on November 7, 2020 8:25 am<https://electionlawblog.org/?p=118290> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen here<https://slate.com/podcasts/amicus/2020/11/americas-broken-election-system>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Betsy DeVos’s Former Chief of Staff Confirms No Democratic Chicanery in Detroit Vote Count<https://electionlawblog.org/?p=118288>
Posted on November 7, 2020 8:21 am<https://electionlawblog.org/?p=118288> by Rick Hasen<https://electionlawblog.org/?author=3>

Tim Alberta<https://twitter.com/TimAlberta/status/1325084142900551681> (linking to this Politico piece<https://www.politico.com/news/magazine/2020/11/06/the-election-that-broke-the-republican-party-434797?hootPostID=8579a9f213bf10921ce841e57c5ba40c>):
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Posted in chicanery<https://electionlawblog.org/?cat=12>
“The importance of transparent elections”<https://electionlawblog.org/?p=118286>
Posted on November 7, 2020 8:19 am<https://electionlawblog.org/?p=118286> by Rick Hasen<https://electionlawblog.org/?author=3>

Rebecca Green<https://richmond.com/opinion/columnists/rebecca-green-column-the-importance-of-transparent-elections/article_642af7bb-cc22-55d3-9aed-d95af16c2324.html> in the Richmond Times Dispatch.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Federal judge blocks another attempt to stop use of signature verification machine in Clark County, slow count of mail ballots”<https://electionlawblog.org/?p=118284>
Posted on November 7, 2020 8:17 am<https://electionlawblog.org/?p=118284> by Rick Hasen<https://electionlawblog.org/?author=3>

Nevada Independent reports.<https://thenevadaindependent.com/article/federal-judge-blocks-another-attempt-to-stop-use-of-signature-verification-machine-in-clark-county-slow-count-of-mail-ballots>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Trump Recount Contributions Go 50% Toward Retiring Trump Campaign Debt<https://electionlawblog.org/?p=118280>
Posted on November 7, 2020 8:13 am<https://electionlawblog.org/?p=118280> by Rick Hasen<https://electionlawblog.org/?author=3>

Read the fine print<https://twitter.com/rickhasen/status/1324825242716446725>:

Meanwhile<https://www.wsj.com/livecoverage/trump-biden-election-day-2020/card/zU0rMlE7ltxzuW4lIwai>, the first $142,000 contributed to the Biden recount effort goes to the DNC.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Military Spouse in California Complains About Nevada Republicans Including Her and Her Air Force Husband Stationed in CA on List of Those Committing Voter Fraud<https://electionlawblog.org/?p=118278>
Posted on November 7, 2020 8:11 am<https://electionlawblog.org/?p=118278> by Rick Hasen<https://electionlawblog.org/?author=3>

Here<https://twitter.com/AmyRose6/status/1324553576874610688> is a military spouse who the Trump campaign has baselessly accused of committing voter fraud in a Nevada lawsuit. When Christian Adams’ PILF made similar accusations calling legal voters “aliens,” they got sued and Adams had to apologize to settle the case.
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Posted in military voting<https://electionlawblog.org/?cat=48>
PA Democrats Tell Supreme Court That Those Late Arriving Ballots Will Have to Be Counted—At Least in State Races<https://electionlawblog.org/?p=118276>
Posted on November 7, 2020 8:07 am<https://electionlawblog.org/?p=118276> by Rick Hasen<https://electionlawblog.org/?author=3>

Important to note that the presidency is not the only thing on the line in the dispute over late arriving mailed ballots in Pennsylvania. From the Democrats’ brief<https://www.supremecourt.gov/DocketPDF/20/20A84/160034/20201106221015844_20A84%20-%20Opposition%20to%20Motion%20for%20an%20Injunction.pdf>:

the ballots contain votes for state races that are not implicated in this case, as RPP’s challenge extends only to votes cast in federal races. State law requires county boards to provide unofficial returns to the Secretary by 5 p.m. on November 10 and, in certain circumstances, requires the Secretary to order a recount based on those returns by November 12. See Statewide Return and Recount Directive Procedures (Nov. 1, 2020). It is thus critical to the operation of Pennsylvania’s recount procedures with respect to state races that the Secretary have as accurate as possible a count of the ballots by next week. RPP’s requested relief would upend that statutory scheme.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>
A Small but Important Math Point about Recounts (Plural)<https://electionlawblog.org/?p=118273>
Posted on November 7, 2020 7:49 am<https://electionlawblog.org/?p=118273> by Richard Pildes<https://electionlawblog.org/?author=7>

Let’s say the probability of a recount in state 1 changing the result of the initially tabulated vote in favor of losing candidate B is 0.2% (I made the 0.2% figure up just for illustration). But B needs to have recounts in four states do the same thing in order to affect the outcome of the election, and to keep it simple, let’s assume the margins that he’s behind are the same in all four states. So in each state, the probability of that happening is 0.2%.

But the probability of that happening for candidate B in four states is NOT 0.2% — indeed, far from it. It is 0.2%x0.2%x0.2%x0.2%. That means it is a very small number, 0.0016%.

This is known as the principle of conjunctive probabilities, first discovered by Fermat.

This assumes the four state counting processes and any errors in them revealed in a recount are independent of each other.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“How Florida Became America’s Vote-Counting Model”<https://electionlawblog.org/?p=118270>
Posted on November 7, 2020 6:32 am<https://electionlawblog.org/?p=118270> by Richard Pildes<https://electionlawblog.org/?author=7>

Jeb Bush has a very good point-by-point<https://www.wsj.com/articles/how-florida-became-americas-vote-counting-model-11604703732?mod=opinion_lead_pos5> account of how Florida, after the 2000 Bush v. Gore debacle, dramatically modernized its election system to give us one of the best run states this year. He lists 11 changes, too much to excerpt here, and this is not what people are focused on right now. But when it comes to the discussions of how we avoid some of this year’s problems, this model set of reforms, successfully implemented, will be an excellent place to start.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
How Would Donald Trump Have Done if All States Used Ranked-Choice Voting?<https://electionlawblog.org/?p=118267>
Posted on November 7, 2020 5:17 am<https://electionlawblog.org/?p=118267> by Richard Pildes<https://electionlawblog.org/?author=7>

In the key states we are still waiting on, it looks like Libertarian candidates received considerably more votes than the margins Trump is losing by currently. These numbers can of course change, and don’t assume anywhere near all Libertarian voters would have ranked Trump second — many third-party voters are so alienated from both candidates, they won’t vote for either as a second choice. This year, in addition, some of these might also be protest votes against Trump, from voters who would otherwise vote R but did not want to vote for Trump — further reason they might not have ranked a second choice.

My recollection is that about 50% of third-party voters do vote for a major party candidate as a second choice, when given the option. The nature of the race and the candidates can also change that percentage, of course.

I have not looked to see whether there are states Biden lost by small numbers in which third-party votes went to other candidates on the left, in which the RCV vote transfer might have put Biden over the top.

Here’s the numbers currently (*8.30 am Nov.7):

GA Trump deficit: 7,248 Libertarian Candidate: 61,792

AZ Trump deficit: 29,861 Libertarian Candidate: 47,632

PA Trump deficit: 28,833 Libertarian Candidate: 77,108

Good morning Rob Richie, I’m sure you will be able to tell us whether there is good reason to conclude, once all the numbers are in, whether President Trump would have been re-elected if all states used RCV. Is Jo Jorgensen the Ralph Nader or Jill Stein of 2020?
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
What Poll Watching and Ballot Processing Was Like on the Ground<https://electionlawblog.org/?p=118263>
Posted on November 7, 2020 4:10 am<https://electionlawblog.org/?p=118263> by Richard Pildes<https://electionlawblog.org/?author=7>

This is the most in-depth story<https://www.freep.com/story/news/local/michigan/detroit/2020/11/06/tcf-center-detroit-ballot-counting/6173577002/> I’ve seen, from the Detroit Free Press, about how the ballot processing went on in one particularly important location, Detroit. Rick linked to it below, but I wanted to highlight that it contains all the combustible elements we expected to see, but that did not, in the end, disrupt the process:

a huge number of poll watchers from both parties — indeed, far more allowed into the center than the law required or maybe permitted; challengers pressing in much closer to the election officials than social-distancing policies permitted; social-media rumors flying fast and furious, either wilful misinformation or just confusion; some challengers not understanding the process and the rules and trying to engage in widespread disruption, such as simply challenging all the ballots at a table with no reason; the police having to remove disruptive challengers; media stories based on incorrect information or information out of context circulating widely.

It’s easy to see how combustible the situation might have been, but it did not combust. I don’t know if I’d say the process went smoothly, but through it all, the election officials performed steadily, including through the night, and none of all this surrounding noise ended up interfering with the process.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Breaking: Justice Alito Issues Order Requiring That All Pennsylvania Counties Segregate (and Potentially Separately Count) Ballots Received After Polling Deadline<https://electionlawblog.org/?p=118260>
Posted on November 6, 2020 4:52 pm<https://electionlawblog.org/?p=118260> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the order directed to county election boards here<https://twitter.com/johnkruzel/status/1324875424405581833>.

The order follows the PA GOP telling Justice Alito that not all counties had indicated that they would follow the guidance as well as tweaks that the PA Secretary of State made to that guidance. Justice Alito also wants a response by 2 pm tomorrow.

What does this mean? It essentially preserves the status quo and leaves open the possibility that these later ballots could be excluded from a count should there be further action. There was no court order requiring this action and now there is one.

Unless the presidential election comes down to Pennsylvania and comes down to what is reportedly a relatively small number of ballots arriving in the three day post-election period, this won’t matter at all. But those ballots could well matter in other races, and likely must still be counted in state and local races, which would not be subject to the court’s order.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>
Running List of Election Litigation Related to Presidential Elections<https://electionlawblog.org/?p=118258>
Posted on November 6, 2020 3:24 pm<https://electionlawblog.org/?p=118258> by Rick Hasen<https://electionlawblog.org/?author=3>

From John Kruzel.<https://docs.google.com/document/d/1VmrJ7ZSG-HmNshJvF-LGtq6jNeN6MtelZKRtqQf-JyA/edit>
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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
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http://electionlawblog.org<http://electionlawblog.org/>

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