[EL] ELB News and Commentary 11/8/20

[Rick Hasen]

“Trump would concede, work on peaceful transition if legal fight falls short, sources say, despite tweets”<https://electionlawblog.org/?p=118320>
Posted on November 8, 2020 6:24 am<https://electionlawblog.org/?p=118320> by Rick Hasen<https://electionlawblog.org/?author=3>

Fox News<https://www.foxnews.com/politics/trump-accuses-president-elect-biden-of-rushing-to-falsely-pose-as-the-winner>:

While President Trump<https://www.foxnews.com/category/person/donald-trump> insists on Twitter that ballots have been improperly counted and argues that President-elect Joe Biden<https://www.foxnews.com/category/person/joe-biden>‘s victory is premature, two sources told Fox News that Trump would concede and execute a peaceful transfer of power if his campaign’s legal challenges fall short of changing the projected outcome.

The Trump campaign has filed suits in several battleground states where Biden led by a razor-thin margin, including Nevada, Pennsylvania, and Georgia. It claimed instances of illegally counted votes from up after Election Day and that poll watchers were blocked from observing counting.

NYT<https://www.nytimes.com/2020/11/07/us/politics/trump-white-house-biden.html?action=click&module=Spotlight&pgtype=Homepage>:

The aides said Mr. Trump had no plans to immediately deliver the kind of concession speech that has become traditional in past presidential elections, and his campaign vowed to continue waging the legal battle across the country. In a statement issued while he was still on the golf course, Mr. Trump said Mr. Biden was trying to “falsely pose” as the winner.

“The simple fact is this election is far from over,” the president said, “Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated.”

Mr. Trump’s advisers said the president has refused to acknowledge that he has lost, maintaining his baseless accusation that Democrats had stolen the election.

But they do not believe he will try in any way to block Mr. Biden from taking office, and said that if he has not delivered a formal concession speech by the time he departs, pressure may mount on his Republican allies, family members and friends to convince him that he must give in to the inevitable and let the American people know that he accepts their judgment.

Even some of Mr. Trump’s oldest advisers, like former Gov. Chris Christie of New Jersey, have said publicly that he needed to have actual evidence to make the claims he has been making about the election.

“This kind of thing, all it does is inflame without informing. And we cannot permit inflammation without information,” Mr. Christie said on ABC News on Thursday night.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


No Middle Ground<https://electionlawblog.org/?p=118318>
Posted on November 8, 2020 3:18 am<https://electionlawblog.org/?p=118318> by Richard Pildes<https://electionlawblog.org/?author=7>

WP:<https://www.washingtonpost.com/politics/trump-election-lose/2020/11/07/27b627ce-2123-11eb-b532-05c751cd5dc2_story.html>

Frank Luntz, a longtime Republican pollster, described Trump as being at a crossroads.

“I think what Donald Trump does in the next seven days will determine his future as well as America’s future,” Luntz said. “The more that he fights, the stronger he becomes among his supporters, and the weaker he becomes among everybody else. It’s been clear to me from the comments that I’ve gotten today. From the hard-core Trump people, he needs to stay and fight. From everybody else, he needs to accept the outcome. And there is no middle ground.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


NY Post Editorial<https://electionlawblog.org/?p=118316>
Posted on November 8, 2020 3:06 am<https://electionlawblog.org/?p=118316> by Richard Pildes<https://electionlawblog.org/?author=7>

The math is looking near-impossible<https://nypost.com/2020/11/07/joe-biden-wins-pennsylvania-presidency/> for President Trump to win re-election. But he should take pride in what he’s done for the nation and the world these last four years. It’s a legacy he could easily run on in 2024 — if he quits the conspiracy-addled talk<https://nypost.com/2020/11/07/this-election-is-far-from-over-president-trump-refuses-to-concede/> of a “stolen” election. . . .

To lock in his legacy, though, Trump must rally Republicans to move forward — by behaving with dignity in the face of likely defeat.

Yes, the election saw a lot of unfairness: Pollsters demoralizing Republicans with predictions of a Biden landslide and a Democratic blue wave; media in the tank for Joe Biden and relentlessly supporting his absurd claim that Trump is to blame for every COVID death.

But the president’s aides have shown no evidence that the election was “stolen.” Where Trump won several key states by razor-thin margins to take the White House in 2016, Biden seems to have done the same this year. It undermines faith in democracy, and faith in the nation, to push baseless conspiracies. Get Rudy Giuliani off TV. Ask for the recounts you are entitled to, wish Biden well, and look to the future.

If Trump persists in wild talk to the contrary, he’ll lead his people into irrelevance and marginalize his own voice. His years in the White House have transformed the nation, but refusing to let go now will make it easier for his enemies to undo it all.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s bid to discredit election raises fear that he will undermine a smooth transfer of power”<https://electionlawblog.org/?p=118314>
Posted on November 8, 2020 3:04 am<https://electionlawblog.org/?p=118314> by Richard Pildes<https://electionlawblog.org/?author=7>

From Washington Post<https://www.washingtonpost.com/politics/trump-concession-transition-power/2020/11/07/2b4cf640-20e4-11eb-b532-05c751cd5dc2_story.html>:

“What’s interesting is that Trump is now the leader of the resistance,” said Simon Rosenberg, founder of the liberal NDN think tank. “He can do a lot to make it far more difficult under what is already very difficult circumstances because of covid. He’s going to create a powerful logic for a third to 40 percent of the country that Biden’s presidency is illegal from the start, and he’s working really hard to continue to build that narrative.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“President Trump Can’t Sue His Way to a Second Term. Why He Is Trying Anyway”<https://electionlawblog.org/?p=118312>
Posted on November 7, 2020 5:42 pm<https://electionlawblog.org/?p=118312> by Rick Hasen<https://electionlawblog.org/?author=3>

Alana Abramson for TIME<https://time.com/5908881/president-trump-cant-sue-his-way-to-a-second-term-why-he-is-trying-anyway/>:

Shortly after the Associated Press projected that Joe Biden would win enough electoral college votes to defeat President Donald Trump, Trump released a statement saying that his campaign would go to court Monday to fight the outcome<https://time.com/5908943/joe-biden-donald-trump-election-concede/>. “Networks don’t get to decide elections,” Trump’s personal attorney, Rudy Giuliani, said later at a press event at a landscaping company in Philadelphia, “Courts do.”

That is, of course, not the case. With the notable exception of the 2000 presidential race, which was effectively decided by the Supreme Court in Bush v. Gore, it is voters who decide elections. And that, legal experts say, is the main flaw with Trump’s strategy: Biden has won too many votes for the Trump campaign to mount any legal challenge that would actually change the outcome.

For an election to be successfully litigated, experts say, the margins between the candidates have to be exceedingly close. The dispute between George W. Bush and Al Gore two decades ago, for example, hinged on just 537 votes in Florida. Election litigation is only consequential, says Nathaniel Persily, a professor at Stanford Law School, “if the number of contested ballots exceeds the margin of victory.”

As of November 7, Biden is leading Trump by over 4 million votes, according to the Associated Press. The state-by-state count that determines the electoral college count is even more daunting for the President. Biden leads Trump by nearly 35,000 votes in Pennsylvania, 25,700 in Nevada, 20,500 in Arizona and 7,250 in Georgia. Trump needed victories in nearly all of these states to amass 270 electoral votes, and the Associated Press has called every one but Georgia in favor of Biden. (Other outlets have withheld calling Arizona for Biden). Recount laws vary by state, but in every state except Georgia, the margins appear too large for the states to automatically issue one.

The campaign has other legal options beyond recounts, but experts say those are also unlikely to succeed. The Trump team can, for example, contest the validity of the remaining ballots that have yet to be counted. Or they can sue to get some ballots thrown out on the basis that they were filled out unlawfully. So far, their record on both counts is not encouraging for the President.

Prior to the election, Republicans in Texas, including an activist and a local legislator, tried to get ballots thrown out in Harris County, where they argued that nearly 130,000 ballots cast at a “drive-through” polling location were unconstitutional. That argument did not pass muster in either state or federal courts. In Nevada, the Trump campaign unsuccessfully tried to sue to halt ballot-counting in Clark County, only to appeal to the Supreme Court after a lower court rejected the claims. (The campaign has tentatively reached a settlement with Nevada officials to allow increased access).

The post-election legal landscape doesn’t look much better for Trump, as the barrage of litigation his campaign has already filed since November 3 shows. In the past four days, the campaign has filed more than half a dozen lawsuits in state and federal courts in Pennsylvania, Nevada, Michigan and Georgia. Most of these cases attempt to push for more access to the ballot counting process, and allege without evidence that fraudulent votes have been cast. They’ve seen little success. Judges in Michigan, Nevada, and Georgia have collectively rejected three cases.

The only real success the Trump campaign had this week was in Philadelphia, where a Judge ruled they could be within six feet of watching the canvassing process. But even that decision has already been appealed to the Pennsylvania Supreme Court, and legal experts say that, at a minimum, it will merely slow down the process.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Top congressional Republicans silent on Biden win as Trump allies remain defiant”<https://electionlawblog.org/?p=118310>
Posted on November 7, 2020 2:54 pm<https://electionlawblog.org/?p=118310> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/republicans-reaction-biden-trump/2020/11/07/ab7087f0-2121-11eb-b532-05c751cd5dc2_story.html>

Top congressional Republicans declined to offer congratulations to President-elect Joe Biden, or even comment on his win, as the White House and its GOP allies remained defiant that the race isn’t over for President Trump.

Senate Majority Leader Mitch McConnell (R-Ky.) and House Minority Leader Kevin McCarthy (R-Calif.) were silent with no plans to issue any statement Saturday about the race, according to GOP aides speaking on the condition of anonymity to discuss the leaders’ plans.

Meanwhile, Trump’s staunchest allies vowed to fight on, adopting the president’s baseless claims that voter fraud corrupted the results. Ronna McDaniel, the Republican National Committee chairwoman, made this the official position of the party, calling any results premature and saying that the election wasn’t over until “any investigations of irregularities or fraud play out.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“After Warnings It Could Go Off the Rails, the Election Actually Ran Smoothly”<https://electionlawblog.org/?p=118308>
Posted on November 7, 2020 2:48 pm<https://electionlawblog.org/?p=118308> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/11/07/us/politics/election-voting-challenges.html?action=click&module=Spotlight&pgtype=Homepage>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Senator Majority Leader McConnell Has Not Yet Acknowledged Biden’s Victory<https://electionlawblog.org/?p=118306>
Posted on November 7, 2020 2:41 pm<https://electionlawblog.org/?p=118306> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/live/2020/11/07/us/election-results?action=click&module=Spotlight&pgtype=Homepage#republican-lawmakers-offer-a-divided-response-some-fall-behind-trump-others-congratulate-biden-but-most-stay-silent>

Senator Mitch McConnell, the majority leader, declined on Saturday to acknowledge Mr. Biden’s victory, with an aide instead pointing reporters to a generic “count all the votes” statement the Kentucky Republican released on Friday before the results were known.

This is not good enough<https://electionlawblog.org/?p=118292>.
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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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