[EL] more news and commentary 11/8/20

[Smith, Bradley]

As the Babylon Bee has already noted, millions of Trump supporters are planning to take to the streets on Monday. They’ll be driving to work.


Brad Smith
Sent from my iPhone

On Nov 8, 2020, at 2:17 PM, "larrylevine at earthlink.net" <larrylevine at earthlink.net> wrote:


        ** [ This email originated outside of Capital University ] **


This posted this morning at ThePoliticalDish.com – Some political reality amid the legal storm.
THE 71 MILLION WHO WALK AMONG US
Donald Trump will not fade quietly into the night, nor will the 71 million who voted for him.
https://www.thepoliticaldish.com/2020/11/the-71-million-who-walk-among-us/<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.thepoliticaldish.com%2f2020%2f11%2fthe-71-million-who-walk-among-us%2f&c=E,1,2cHdLINnhZdJrqprkCvyVIlldAqRaf8lg3YVcTQM1U1Koa5X1bz8I478pR0H-ZrmQMyZ6nADuMqPzWsqRsF5KElOyUsI6HomQD60mOBR91g3&typo=1>


From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Rick Hasen
Sent: Sunday, 8 November 2020 10:25 AM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] more news and commentary 11/8/20

My new one at Slate: What Happens If Trump Won’t Concede? (How Republicans are using the Matt Bevin strategy)<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118337&c=E,1,unyncmDXTz7e8-sEpp8WjAlnch29BB4Z8Dfn5hXfPzJblkMj0g0mIeoC-429aH_Mz-3kbYtfY6_jFlw8_jLsSOhUtzHC47EWESWV4plWgB8XqrK4GbY,&typo=1>
Posted on November 8, 2020 10:23 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118337&c=E,1,zv0C19D2hlrPs707LUhRxgnEjUAt-hqMAJyBTfCkBFXPkdSzZCj4E5xt24jnX7lJs02hA4rIqh3wm6pVmYNnuZiqcfGviAHce6bqaGFDrhVz8QjV9fz48cDHRdk,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,5YZRmqb304GNYcCkIamezwZm7dxzgopd8AQ97OfdHG5JGQrlb4_upLdSFO5rEmMd7dZ0oVSuthj2Oc9ftRY8zezg0mnJxwy7E6_3PNXk&typo=1>

I have written this piece<https://slate.com/news-and-politics/2020/11/trump-concede-threat-legitimacy-biden.html> for Slate. It begins:

President Donald J. Trump hasn’t conceded the presidential race to his Democratic challenger Joe Biden yet—something that would be a normal step in the peaceful transition of power. Instead, Trump has continued to make unsubstantiated claims of voter fraud and to threaten new lawsuits that he says will expose the fraud and lead to his victory. (They won’t<https://slate.com/news-and-politics/2020/11/what-is-trump-endgame-if-biden-wins.html>.)

Given Trump’s norm breaking throughout his presidency, his failure to concede early is hardly a surprise. The question is whether we should worry about it, and whether his failure threatens that peaceful transition. So far, the signs are hopeful that we will make it through this period, but all is not rosy. Responsible Republican congressional leaders are not yet on board but likely will be soon. On Sunday, all Republican House Leader Rep. Kevin McCarthy would say was that the nation had to wait for the process to play itself out<https://twitter.com/GOPLeader/status/1325473110095761409?s=20>, while former President George W. Bush called Biden “President-elect” and acknowledged Trump could pursue his legal remedies: “The American people can have confidence that this election was fundamentally fair, its integrity will be upheld, and its outcome is clear.” Irresponsible voices, though, are trying to delegitimize the Biden presidency from the beginning….

The one group that has not spoken up yet, and that is crucially important for acceptance of election results, is the rest of the Republican congressional leadership, beyond McCarthy. For example, on Saturday, Senate Majority Leader Mitch McConnell declined to weigh in on Biden’s election, pointing to<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118306&c=E,1,omRBovt1v9WTVA_n5VUrtqlrEduSlidx3cClsQu7_jj0lc2xbFyAO1eP0bLETsSDu0zqZ5ibU_Ydg8bhxvxevUxDjkjtzth3F3JRUBAyVfqzvw,,&typo=1> an earlier statement about letting the vote counting and legal process play out. Other senators have taken different tacks: Mitt Romney and Lisa Murkowski congratulated Biden, and some 2024 aspirants such as Ted Cruz and Josh Hawley ridiculously mimicked<https://slate.com/news-and-politics/2020/11/donald-trump-jr-eric-trump-are-right-blame-gop-election.html> Trump’s unsupported voter fraud claims.

Perhaps most important was the message coming<https://twitter.com/ThisWeekABC/status/1325449819490545670> from Republican Sen. Roy Blunt, considered a leading adult voice among Republicans in the Senate. Speaking on ABC’s This Week on Sunday, Blunt refused to acknowledge Biden’s victory at this moment, but signaled that it is put-up-or-shut-up time for the president’s legal claims: “It’s time for the president’s lawyers to present the facts, and it’s time for those facts to speak for themselves.” Blunt said that the process of choosing the president was nearing the conclusion, and suggested as head of the Inauguration Committee that he looked forward to working on a Biden transition.

This is exactly the playbook that Republicans used when Kentucky Gov. Matt Bevin sought to get the Kentucky Legislature to take away his Democratic opponent Andy Beshear’s victory in the 2018 governor’s race. Bevin alleged fraud<https://slate.com/news-and-politics/2019/11/matt-bevin-andy-beshear-trump-stolen-kentucky-election.html> without providing proof. Republican leaders in the Kentucky Legislature gave Bevin a few days to come up with the proof. When he produced nothing, they got impatient, and Bevin eventually conceded, blaming the “urban vote”<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d108280&c=E,1,-twgZs1f4v8tuUsp7rMLijjm1VA9OjgwQsyrZNszAX2WQnGfNLtRV5GrMKEQj3wM2uoxJHRMJFUoAHixXHPm5mYEvoIL1S51_PexzK1EfR7L7k0sNb8N3w,,&typo=1> on his way out the door.

The same thing is likely to happen with Trump. Biden has a wide enough Electoral College lead, and a wide lead in enough states, that it is impossible to see Trump litigating his way to reversing a Biden victory unless facts come to light about a major failure in vote counting across multiple states. Trump has plenty of claims he can bring and every right to bring them. But the claims will not amount to anything substantial. He can ask for a recount in Wisconsin, for example, but the chances of overcoming a 20,000 vote deficit are practically impossible when the average statewide recount moves numbers by about 300 votes<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.fairvote.org%2frecounts&c=E,1,y_7DFgvuXd8mSo_QwYmdTNko18WVJ3KbxBJa6mt6pAkq4s3Ayje94-iJzYHq58W3GBrG_SZSdTKgYLyov-VDkYryeOWVYMG35XKzKMi_YuWt&typo=1>.
<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118337&title=My%20new%20one%20at%20Slate%3A%20What%20Happens%20If%20Trump%20Won%E2%80%99t%20Concede%3F%20(How%20Republicans%20are%20using%20the%20Matt%20Bevin%20strategy)>
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Posted in Uncategorized<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d1&c=E,1,7x2Vfo2V3ylVgcFl-9gAXzk2H5FLPbut7x8phW4ZZg5uTvoUdjUlPMZ2wTgPd2JqmrUfrbHQ4kBxiH69NcXjvtb8pgimBoh6WhISVOCf&typo=1>


President Bush Congratulates Biden on Victory<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118334&c=E,1,POB3yuBJ6snd6q5Q5jcvHzHW9jDYi76lIOjEUVfnAaWQCx9ATcBtkuiTJUkFeKviWZjnGvstaAB9V8amcmP0v5Z1PRzuyTl8JKIcWJEln0VfWufcEaAQ&typo=1>
Posted on November 8, 2020 9:27 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118334&c=E,1,1zmLhBpKcHrBU7yh9kxpQxwq20akObXOyeBTRKD_Jpj7_xJDbZodiSShVHQQwEM7yM0nsryWJkZrOIQV25mod-lA1qHO6Y880OwZGNOa&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,bDTSmzNDomCy8t-Y9-T39vJv14nXcrB2gin4Y-AZSclLPORXwISvjrSpCn8IlrRmAOpo1AAjtWCO6C4zID6MBXrE9JLUbcTHFWxJ4TkQTgqQGt_Tcyu6ivENjg,,&typo=1>

An important step:<https://twitter.com/dsamuelsohn/status/1325488559701233665>
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<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118334&title=President%20Bush%20Congratulates%20Biden%20on%20Victory>
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Posted in Uncategorized<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d1&c=E,1,7Eqqb3o9AEIfdhsdshp8oj255WlITl7A2b4LhKS2QUmb50W62jxlFxv9MUjqRb2a3ealIHRMqF33nV-64tyhMKdEDmXzw8Lc8nVfl_w9B8TtAtMbhL4,&typo=1>


“Elections Don’t Have to Be So Chaotic and Excruciating; The random way in which returns were released caused anxiety and sowed conspiracy theories.”<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118332&c=E,1,I0MwQlqxiu1xbuDJhvbc3AKow98SwLa2xQjOOOSr2ChgmSfXe6LqpiCqjsfKBLf0V3iQNSSmbDMqOvg-0gL6m_IA60pJJE9B7PdDj-Tir-ygWECtvuw,&typo=1>
Posted on November 8, 2020 9:19 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118332&c=E,1,jgpJPsHrUOKw0T8X3DoCyZPbrQVHQgkBftOSPUdowyHI2AvMD5QSG-mUG7rAFYL8e8KPkadzrnjfPUDOtRs2yKNpFpD9bJdYTZV_5qlZdhV_7IsMdHp4512y7A,,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,W___6P3_rZ3CgD5vvURsV-4c_UoTGm93ZoazdZMTrZxEkQpddr34UB6pnj3PDIbJkNAVdgff8Ohz2io9VzPi0BqONGb7G8X5mqQlYDxJ9htncDWuNg,,&typo=1>

Steve Vladeck NYT oped:<https://www.nytimes.com/2020/11/08/opinion/voting-results-elections.html>

This haphazard process causes problems in at least three respects:

First, it opens the door for charges that something is amiss, as it might have struck some with the returns from Pennsylvania, where the count first had one candidate up by thousands of votes, only to swing entirely in the other direction. This can leave the impression that sinister forces were at work, when it was just a function of the partisan makeup of the counties whose votes were being counted, or the type of vote — mail-ins, for example, which are disproportionately Democratic — being reported.

Second, for state legislatures, this “mirage” phenomenon could encourage mischief. For instance, the prohibition on early processing of mail votes in Michigan, Pennsylvania and Wisconsin has been laid to<https://www.rollingstone.com/politics/politics-news/election-pennsylvania-vote-by-mail-chaos-trump-biden-1071329/> Republican lawmakers, who control the legislatures of those three states. Those decisions appear to have produced exactly this effect — to have the first reported results look much better for Republican candidates than the overall tally, thus influencing the election narrative. There’s value in shaping the headlines even if the bottom line remains unchanged.

Finally, the uniquely American approach to counting and releasing election returns — with each state running its election its way — can lead to days of unnecessary and often misleading televised drama, with negative consequences for our mental (and physical) health. How many hours were wasted in the past few days refreshing web pages with election results or sitting in front of the television? How much productivity was lost? How much avoidable stress was created? How much social turmoil could have been avoided?

It doesn’t have to be this way. In Canada, for instance, a nonpartisan federal agency administers elections using a uniform set of rules and procedures across the country. Brazil has a similar system. Indeed, David Carroll, director of the Carter Center’s democracy program, told The Washington Post recently that the decentralized nature<https://www.washingtonpost.com/world/2020/11/04/world-elections-delayed-results/> of the U.S. electoral system for choosing a national leader is unique. Even so, there is no question that Congress, under the Constitution’s Elections Clause, could impose uniform national rules at least for federal elections.
<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118332&title=%E2%80%9CElections%20Don%E2%80%99t%20Have%20to%20Be%20So%20Chaotic%20and%20Excruciating%3B%20The%20random%20way%20in%20which%20returns%20were%20released%20caused%20anxiety%20and%20sowed%20conspiracy%20theories.%E2%80%9D>
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Posted in Uncategorized<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d1&c=E,1,6p2gfjYWk0I4AYh_B1mFLuhi1UfY3_Wi40i4FExUxhjx1VGJhRHJlCvoN-aPOAor_Ta_EGAejstAh-Nk112HD0EwYo-U-of4tpS1IVfvTIwrTdFbSh82Rab3yyI7&typo=1>


“The Next 2020 Election Fight? Convincing Trump’s Supporters That He Lost”<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118330&c=E,1,NsyH3_wthtRdVUsPb8c7Nnl6KOz-ZiRj0CxABKjsFAxUvfC47ms09CN987BgkwroRu9mJc4iEHJznsxZkvx6KTvCFXHjyH0gKGxBnZ7C&typo=1>
Posted on November 8, 2020 9:14 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118330&c=E,1,HcqwjF3ERTv-yP22IqrXubNmDJ9WYGI1E_zAHdlUHQANE9w6JUDJo3R4JS0BLci6nJbCpOojuZj3wRTrcsaqFHXeVpj4TCV8HHETfTy37kSfDWktKQrO2iy8E6o,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,Vnp9FvmU4vA-OMuWu2fF1csTK0N9g4Tfd3wgfnzhmOQMMRfuuk6ch6uJGCmTGvrmrC7LlV7PyyVTNDeAjNmHmHcrOIbiEeOZmN3am4sME3043ULaGqganiE,&typo=1>

Miles Parks<https://www.npr.org/sections/live-updates-2020-election-results/2020/11/08/932543826/the-next-2020-election-fight-convincing-trumps-supporters-that-he-lost?utm_medium=social&utm_source=twitter.com&utm_term=nprnews&utm_campaign=npr> for NPR:

Even though all the major news networks, including Fox News, called the race for former Vice President Joe Biden, Saturday was the only the beginning of a long road to convincing a sizable portion of the American public who won the presidency.

President Trump has spent much of his four years in power amplifying false claims about election fraud, which has eaten into the confidence many Republicans have in the voting process.

Now those Republicans are having to decide whom to believe: election officials from both parties in charge of voting or Trump, who continues to falsely say he is the rightful winner. It’s the latest step in a game plan he has laid the groundwork on for years.

Before this election, about two-thirds of people who said they had little to no confidence in the vote-counting process were supporters of the president, according to AP VoteCast data.

And now Trump has seized on those doubts. He and his campaign have shared conspiracy theory after conspiracy theory about why votes were still being counted after Election Day, even though the tallying process was going roughly according to plan<https://www.youtube.com/watch?v=JN84L7w0DLA&ab_channel=NPR>….

Social media groups have quickly sprung up<https://www.npr.org/2020/11/05/931794937/facebook-removes-pro-trump-group-urging-boots-on-the-ground> in the days since voting stopped, to spread disinformation about supposed cheating on the part of election officials, and in some cases organize in-person protests.

“This is the most intense online disinformation event in U.S. history and the pace of what we have found has only accelerated since [Election Day],” said<https://twitter.com/alexstamos/status/1324393620045144064> Alex Stamos, director of the Stanford Internet Observatory and Facebook’s former chief security officer.

The social media groups are reusing channels that have previously been aimed at sharing other conspiracy theories that cater mostly to Republicans, says Melissa Ryan, who runs the firm Card Strategies, which researches disinformation.

“These ‘Stop The Steal’ protests are clearly building off the infrastructure from the reopen protests that we saw earlier in the year during the pandemic,” Ryan said. “And frankly, they’re using the same strategy and infrastructure as the Tea Party back in 2009, 2010.”

Trump has been the driving force of that misinformation online, however. Three of the four most popular posts on Facebook in the past 24 hours were posts by the president in which he falsely claimed victory or alluded to doubts about the election’s fairness.
<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118330&title=%E2%80%9CThe%20Next%202020%20Election%20Fight%3F%20Convincing%20Trump%E2%80%99s%20Supporters%20That%20He%20Lost%E2%80%9D>
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Posted in cheap speech<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d130&c=E,1,fwlvUpaG9pgMyZaXLH7PfTa4SuIpYCAkne4CX5fmdF-_gzGBhCOeTzgn4Ri4ATcAAUwh2Jbjd7rUv9oTvFUT_DgYaQ1ySxK5vFvtRmXFuxwdPo9JIOT8kKw32Q,,&typo=1>


“Democracy Worked This Year. But It is Under Threat”<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118328&c=E,1,6uIs-RGRMlTQmUEB-DFSz6ge65hhVBjcdB3BHLiC6LMK9EY_NHWL5dwCmtTgWjoLCx2ByG2L90SKq3pU7-N0zBgnE5EMTavmVP0-vfq5MYA,&typo=1>
Posted on November 8, 2020 9:01 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118328&c=E,1,y3Oq_pGbHpKxZhenpH0rlu5ylO4fwSgyrxgXo9WpnSvdYAbWv7x_ZOLRjcCDQZ4onN7cvS_2jIaYlpvyEPCVDCBFbw1y2CNv_OkHQKxkdsPsQ0O1sYs9zBVV8cVI&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,-L890rWJvCRZ-nY_AB2S5JHi9URqVADwLWKyb6HB0rgKZnzV6NT1eQzqZ4XP3j5dWwyMMjiv02Gfk9pbQZvL6P3Petfv15Ho8Rk8700NKbFI_CeKQCEsz_ie9w,,&typo=1>

Emily Bazelo<https://www.nytimes.com/interactive/2020/11/07/magazine/election-voting-democracy.html?action=click&module=Spotlight&pgtype=Homepage>n in the NYT Magazine:

America’s pandemic election was a remarkable, unlikely feat. “The challenges and obstacles were perhaps the highest in history, or at least since the Spanish Flu in 1918, and we saw fewer problems than in any presidential election since Bush v. Gore,” said Nathaniel Persily, a Stanford law professor and co-director of the Stanford-M.I.T. Healthy Elections Project<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fhealthyelections.org%2f&c=E,1,exlhF4fYRdmXpiiy-HIa_hGMP6lGMLDM4TkB-DP7mKUgi7hRR8coVApT1fHnfIcEYwCUyNiImHuoBgt1nLu1tylFs7kcEQdZTIfJ6Ne_Bkw,&typo=1>. This spring, there were warning signs<https://www.nytimes.com/2020/05/05/magazine/voting-by-mail-2020-covid.html> that with the coronavirus spreading, swing states like Pennsylvania, Wisconsin and Michigan would not be able to set up and run a vote-by-mail operation of unprecedented scale while simultaneously staffing thousands of polling places among them. The checklists were long and logistically complex. The resources were lacking. Asked for $4 billion, Congress allocated $400 million. Election officials in states like Washington and Colorado, where voting by mail is nearly universal, told me that it took them multiple election cycles to get it right. Some primary elections this year underscored the doubts by going badly, with election offices sending thousands of absentee ballots too late to be returned on time (Wisconsin), discarding mail-in ballots for minor errors<https://www.nytimes.com/2020/08/03/nyregion/nyc-mail-ballots-voting.html> at alarmingly high rates (New York) or taking weeks to count ballots (New York and Pennsylvania).

But as Nov. 3 approached, county and local officials rose to the challenge. They contracted with printing companies, where workers ran the presses overtime to churn out millions more ballots than had ever been requested before. They coordinated with postal workers to send out ballots and receive them in mass deliveries. They collected ballots from drop boxes and sorted them. They hired tens of thousands of people to open envelopes, inspect the ballots inside for voter errors and feed the verified ones into scanners for tabulation. Thousands of poll workers made voting in person possible, too.

Election officials had help from a small but highly skilled group of academics like Persily. These are the law professors and political scientists who pay continual attention to the health of our elections, focused on sacred questions of voting rights and also prosaic ones about checking signatures. Private philanthropists<https://www.washingtonpost.com/politics/zuckerberg-chan-elections-facebook/2020/10/12/0e07de94-0cba-11eb-8074-0e943a91bf08_story.html> also provided states with hundreds of millions of dollars to pay for poll workers and personal protective equipment and voter education, expenses the government traditionally covers. After the election, when I asked several academics how the mechanics went, they expressed relief and even sounded a note of celebration. “It could easily have been a total train wreck,” said Michael Morley, a law professor at Florida State University who served in the George W. Bush administration. “Instead, we can be proud about how well our election officials conducted this election under extremely adverse circumstances.”…

This year’s election could well be a turning point for voting by mail in America. In February, Richard L. Hasen, a law professor at the University of California, Irvine, who has studied elections for decades, convened a group of bipartisan experts who proposed a series of nuts-and-bolts changes to make absentee and in-person balloting more accessible.

The reforms included giving voters in every state a chance to fix an error like a missing signature on a mail-in ballot and ensuring that counting ballots isn’t subject to delays. If election officials can begin processing ballots early, this year has taught us, they have time to get in touch with voters to address mistakes on ballots and also complete the count on or close to Election Day.

These are small steps, technocratic rather than visionary, but ones that can help increase participation and trust. Congress could set national standards and fund states to implement them. “It’s time for uniform rules,” said Stephen Vladeck, a law professor at the University of Texas, Austin. “We’ve learned a lot about how ballots should be distributed and validated.”

Yet in recent litigation about voting by mail, Republican lawsuits have resurrected a theory<https://www.washingtonpost.com/outlook/2020/10/30/conservative-judges-voting-theory/> that could prevent state courts and election officials from enacting changes that protect voters from disenfranchisement. The idea is that the rules for an election must come exclusively from the legislature. It derives from the Supreme Court case that effectively decided the presidential election in 2000 — Bush v. Gore. But it has lain dormant since then, because it was never adopted by a majority on the Supreme Court….

So far, these legal developments are a skirmish. At press time, the deadline extensions appeared to have little effect, because the number of mail-in ballots that arrived after Nov. 3 seemed small. But the cases laid the groundwork for future battles over election rules, large and small. “This is now at the top of my list,” Hasen said. “The federal courts are threatening to become the greatest impediment to election reform.”
<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118328&title=%E2%80%9CDemocracy%20Worked%20This%20Year.%20But%20It%20is%20Under%20Threat%E2%80%9D>
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Posted in Election Meltdown<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d127&c=E,1,ekSUvSAQBv4UyjXWgN0-sICbcJTuDTgPrSOWpvHWUFytK7Uch-ZKvkfqWQ_jNEjfa9nFQykJ6PkTJKpowjwzBzOFzg58_hwoz5x9FljGN95aJqAPKtQQbYywzkdF&typo=1>, The Voting Wars<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d60&c=E,1,CdpdnE0B35gjhg2VxGzhNYE25kXXFqsU0I6KOrVc9x_6SC_6VJZ4B87xwZOAskOS7lmLR-Qj2YxZFSux95CL2RhKGd6vHmzjLleJW4C6uv8Cip477WirFC4,&typo=1>


#LookingBack: Whither Republican Party of Pennsylvania v. Boockvar? (Derek Muller)<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118326&c=E,1,TUax-LVOtB3urQj2TtwtEmP8PhpSyy14RIawQi8FHz1QrbYl93cY51ZTdByTJlhuJYZMiXKY1V6otJQCsGIR6YyMq5oKuw4O5MPhdssZ7A39Mr1R&typo=1>
Posted on November 8, 2020 8:52 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118326&c=E,1,I15ecAD5JKJfQjBjxb5c2NPz6KBzptH8dLIQnCsDhBix0kvBOs5AP_87lu02yUoGTmkmyfxGMzMooqo2jck-vcaCdKObJgac1aOFw8vUm4M09CKNilM,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,1f4jTca99RGPNs81mapqRpz_FS7RG_KLBNk2D2zyNhsT_9CEbFeWhwPW7m89Hg2S2ifBKH1mTgdhdHBnVKElfEkmJUrghzJUPAfCS1RU&typo=1>

The following is a symposium contribution from Derek Muller<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2flaw.uiowa.edu%2fderek-t-muller&c=E,1,952agtSqKlqjb8lsIRO4wtaNRiZqDAwfpsr-g7CFf1oogXNmrWmc8cF6-Bm4p02j0mh71KGM_x-uMdtGbrX7i9geNmiqm26EpdwwcwI9RwAAbhiwmh2mZ-8,&typo=1> (Iowa):

President-Elect Joe Biden’s margin of victory in the Electoral College and in decisive “swing states” is increasingly impermeable to potential recounts or “faithless electors.” It’s reminiscent of the margins of the 2016 election—recounts don’t change tens of thousands of votes, and electors are rarely faithless even under the most ideal conditions.

So what happens to Republican Party of Pennsylvania v. Boockvar<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.scotusblog.com%2fcase-files%2fcases%2frepublican-party-of-pennsylvania-v-boockvar-2%2f&c=E,1,4GtuGJyjEs9y-VRiDooE7wO9jNA1vRxPfNySB3YUe7y7TQ8C3qfr1sektPxyq-M_Nt8gPNAPF3wE3P_mFP6LFGP7RA88spAccVhRIUwktVXu&typo=1>, the biggest pre-Election Day case still sitting before the Supreme Court? The dispute concerns the Pennsylvania Supreme Court’s decision to require counties to accept ballots received up to three days after Election Day, as long as they were postmarked by Election Day or lack a postmark.

The Republican Party argued that this judicial order—construing the commonwealth’s constitution—breached the legislature’s clear statutory directive that all ballots must be received by Election Day. It’s an argument from Article II of the Constitution, that the “legislature” directs the manner of appointing electors, and, as Chief Justice Rehnquist put it in a concurring opinion in Bush v. Gore, “the clearly expressed intent of the legislature must prevail.”

Philadelphia County<https://www.washingtonpost.com/politics/pennsylvania-ballots-gop/2020/11/06/064fdf94-2056-11eb-90dd-abd0f7086a91_story.html> reported 500 or so in this three-day period; Allegheny County, which includes Pittsburgh, tabulated 947 ballots; Luzerne County<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.supremecourt.gov%2fDocketPDF%2f20%2f20-542%2f160036%2f20201107121451575_Revised%2520response%2520to%2520emergency%2520application%2520for%2520injunction.pdf&c=E,1,oGD5RRTP0or0w7kXPWVPcFwFpPF9iXzZXhrYewFCQ28-S4fLJeaUPfFS6aA15cRTqo-Gev_ekc0KbdZ4CyZTSRZl_P2SIS85n4qWzGxw_A,,&typo=1> reported 255 ballots, or about 0.2% of the county’s vote total. (Pennsylvania has been tabulating all votes but keeping these disputed ballots separate from others.) It appears a push by the post office and public awareness of the importance of mailing ballots early have minimized such disputed ballots.

It seems unlikely the statewide total of such ballots exceeds even 10,000. The margin separating the candidates now sits around 40,000, and pulling these ballots—even if every single one were cast for one candidate—wouldn’t change the result.

So what happens to this case?

Mootness: One argument might be that the claim is moot. The election is over, and a judicial decision wouldn’t change the outcome. Doesn’t that mean there’s no live case left?

Election law cases like one this are often treated as an exception to mootness, “capable of repetition yet evading review.” Anderson v. Celebrezze (1983), Storer v. Brown (1974), Rosario v. Rockefeller (1973), Dunn v. Blumstein (1972), and Moore v. Ogilvie (1969) are just a few expressly addressing the mootness point. Anderson, for instance, involved John B. Anderson’s independent presidential campaign in 1980—in a decision the Court issued in 1983.

It seems strange to say it “evades review” when, well, the case was in front of the Supreme Court before Election Day. But no one says the Court’s mootness precedents are the most coherent.

Cert-worthiness: Another question is whether the case is still worthy of granting certiorari. If it doesn’t affect the outcome of the election, why hear it?

Four justices have already written or signed onto pre-Election Day opinions showing interest in revisiting this Article II issue about the power of legislatures: Justice Alito, joined by Justices Thomas and Gorsuch, in the Pennsylvania litigation<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.supremecourt.gov%2fopinions%2f20pdf%2f20-542_i3dj.pdf&c=E,1,2KeeDyo38BZ-OsboLWwR1Xk7qzZavqDcczWXeLHgfwXhSkQQOtxqCr_25NFfHWxWqhyJRWAEd1eFrY5ryvUUGZQru8UURqe9bN82kHTa&typo=1>; and Justice Kavanaugh in litigation from Wisconsin<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.supremecourt.gov%2fopinions%2f20pdf%2f20a66_new_m6io.pdf%23page%3d6&c=E,1,ScjiSpa_biMOH1VlFIxGCpueOpr3Uebsu0tdDLtx3lFeerS5V-PI44I5NWxDxtzelp85lQNlCatfnDYGKuY9-sTaQ6MB4L4q9W1PMZ_qP5aRAg2dGg,,&typo=1>. (Justice Kagan, joined by Justices Sotomayor and Breyer, pushed back<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.supremecourt.gov%2fopinions%2f20pdf%2f20a66_new_m6io.pdf%23page%3d24&c=E,1,qZcHxhXiSSKwA41wKfNLqe3X9ojrXL6s4Qqkdt2Fd-TYfbCN018Lce6LAxkuuALTEdhvwi-slpLIXhkdxbH3Hc9zrZdvO5agqBC9egdx2dhs3tOv49Y,&typo=1> against Justice Kavanaugh’s position.)

Justice Barrett did not participate in these disputes. It’s not clear why Justice Kavanaugh didn’t join Justice Alito’s opinion. And Chief Justice Roberts concluded<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.supremecourt.gov%2fopinions%2f20pdf%2f20a66_new_m6io.pdf&c=E,1,HMakugsZlM--b_paqrx_cGBhPamhL3mQzMHWjDiAIex71ze6FHeQbHkal1FA5iEFkok8PWxiUM3w8esP87UFje1yGTN1Z2P4u1IQu-QegIzdAZi7nvP53ZdP9bMI&typo=1> that his reluctance to weigh in on the Pennsylvania was attributable to “the authority of state courts to apply their own constitutions to election regulations,” along with “different precedents.” Precedent, perhaps, as Justice Kagan cited, like Arizona State Legislature v. Arizona Independent Redistricting Commission<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.supremecourt.gov%2fopinions%2f14pdf%2f13-1314_3ea4.pdf&c=E,1,Hq0HniHcVjGOQh8LGyBF8VLRGb4tQDq3FfDDvFSGyy95lS6zRf_AYaxW8jxpU-ReZ1xiyYWwBX-i1zQJUwZ6yicxupQi4lAdP7MwKBa7DHLQkmCGvtnVrpDLmbU,&typo=1>, a dispute arising out of the context of congressional elections (not presidential election), and one that Chief Justice Roberts dissented from but may now feel bound by.

In short, it’s unclear whether there are four votes to grant certiorari, or how it might shake out if certiorari is granted. But the interest, and the intrigue, remains high, in my view.

Reliance interests: One cut against the plaintiffs’ claims would be the reliance interests of the voters in a pre-Election Day posture rather than a post-Election Day one. That is, voters dropped ballots in the mail by Election Day with the assumption that Pennsylvania would count those votes if received by November 6.

But I wonder if an emphasis on “it doesn’t matter if these votes are counted because the result is the same” makes reliance interests less salient. That is, the Court might feel more comfortable in the post-Election Day posture knowing that these ballots feel more like an abstract proposition than outcome determinative.

*

There would be significant complications in the ensuing briefing if certiorari is granted. Does the Court revisit precedents like Arizona State Legislature? Does it treat presidential elections differently from congressional elections? Does it treat judicial construction of statutes differently from construction of state constitutions?

I don’t know what happens if the Court grants cert. But I think it remains a distinct possibility that it chooses to do so, when it has ample time for briefing and when it knows its answer will not alter the outcome of a pending election. And that decision could be transformative for future election cases.
<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118326&title=%23LookingBack%3A%20Whither%20Republican%20Party%20of%20Pennsylvania%20v.%20Boockvar%3F%20(Derek%20Muller)>
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Posted in #LookingBack<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d132&c=E,1,6RBbgVU14jPemZm4sUADBMpjy2YwONuUd0nwv3H2qBQ6pfTdD1-gXiEoUPSNDg9qVAHrB8S_alMC9TmYRsBdkbvxLI61tCfvapYas5RdjGZ5xwX94io96NkwB6X9&typo=1>


#LookingBack: Litigate On (Sam Issacharoff)<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118324&c=E,1,ONW2NwUwo2444sU-BbRMDpYKVgsmNiBpK3s6IfIl11OQzvhXbuQauAK_6MOafzJQk76cDOpCELRC9PA6G1VjtYN55IWYeqaA5rwp-__lOvdtsIuyjKW8cVM,&typo=1>
Posted on November 8, 2020 7:05 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118324&c=E,1,QzJiglWc-y-Rp-0QzlUc9V9NQX0Frbnst-pJ3zCDE2z6zUqIGO2v1GRelQGDMNHlGoDPK0ndwzJKgop2cz3gPYnAKaD4VYNnUu8xbcd17VEvC1hrSMrbplVZKxs,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,8H5s1i556JgruQor6H51H-lL-d3huk3-9Su6sRnLL3KTf9jav-mClbxQw6PaPdCrVzRLxKFRGTSd0D8FVkOoqg0DPvScsJ3oVvVmd8SuYJA,&typo=1>

The following symposium contribution is from Sam Issacharoff<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=23845> (NYU):

I was born in Argentina under Juan Perón.  History has unfortunately given us too many charismatic demagogues, elected to office and quick to turn on every institution that brought them there.  Some are talented public figures, including Perón himself, and some merely symptoms of a society running aground.  The 20th century versions of these demagogues adored Mussolini, Franco and played with all the elements of fascism.  The 21st century ones are less transformative but now find Putin irresistible.

Perón was never defeated electorally.  He was overthrown in his second term by the military, and then died in office when he returned from exile two decades later.  Peronism still casts a shadow over Argentine governance that has withstood military coups, scandals, hyperinflation, and dismaying economic dislocations.

Will Trumpism become the American Peronism?  Trump is now on his way out.  The departure is and will be noisy, full of recriminations, full of claimed victimhood, all the trappings of a destructive four years.  To be sure, Trump is no Perón.  Perón genuinely raised the aspirations of working-class Argentines and the social commitments of Evita left a legacy that included raising wages and providing guaranteed national health care.  Trump will leave office with a tax cut for the wealthiest Americans and little to show ordinary working people.

But Peronism tapped a politics of resentment that roils the country to this day.  Perón never had to face the consequences of his irresponsible economic policies and became a martyr for an ill-defined political legacy.  By contrast, Trump lost the election and both before and after tried to torch the system by claiming fraud.

Much to Trump’s chagrin, something extraordinary happened this November.  In the face of a pandemic, more Americans voted than ever before, the highest percentage in a century.  Because of the number of close states and the laborious process of counting millions of absentee ballots, the process of tabulating the results took place over an amazing five days.  There in front of tv cameras were the unsung heroes of democracy.  In state after state, people could watch their fellow citizens, at table after table with one Republican and one Democrat, counting the ballots.  Hour after hour they labored, almost all volunteers, shoring up democracy at a most difficult time.

Trump could take to television early on to claim victory, shout about the fraud occurring, and his sons could even call on the faithful to take to the streets.  But on television, citizens saw something else.  An orderly process that was transfixing because it seemed so routine, so ordinary.  By the time the election was called on Saturday, the Trump calls to resist fell somewhere between shrill and silly.

But now Trump wants to go to court to claim fraud in multiple states.  Please do so.  Challenge military personnel on deployment as fraudulent voters in Nevada.  Pursue a rumor that someone saw 50 illegal ballots dumped into the mix in Georgia.  Claim that 150,000 votes in Pennsylvania somehow were slipped in with no vigilance.  Go ahead.  And, of course, go raise money for putative appeals, but with 50-60 % skimmed off for the Trump coterie.  A grifter once, a grifter always.

The final election margins were narrow but these kinds of election challenges never go anywhere when there are tens of thousands of votes at issue.  Recall that in 2000, Bush was ahead in Florida and was trying to protect a lead against after the fact changes in counting procedures.  The Trump group was so eager to claim fraud, that they could not wait for the election.  All the practices they now complain about were already vetted through the courts before the elections.

Trump will have to show fraud in state after state, and he will have to provide evidence more substantial than Rudy Giuliani peacocking it for a microphone.  He will be rejected by court after court, as he has been already.  He will not be able to blaspheme about “Mexican judges” and all the nonsense of the past four years.  He will appear a whiner, unmoored and, most of all, a loser.

For Trumpism not to become the American Peronism, there needs to be a moment of repudiation so that political life may move on.  The election may not have been enough.  Let the lies be tested in courts to ground the lessons in our political psyche.  Our citizens and our democratic institutions deserve respect.  They saved us last week and maybe we need some unfounded lawsuits to reinforce that lesson.  By subjecting his irresponsible rhetoric to legal scrutiny, Trump may finally be performing a genuine public service.
<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118324&title=%23LookingBack%3A%20Litigate%20On%20(Sam%20Issacharoff)>
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Posted in #LookingBack<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d132&c=E,1,X81sPITfHZNIvhdMT0M-FGOS-OwNIRpq6-WcutvVFsDcelez6wkczhAZqlnrXPiOgr1Qzy4OliN2mfjNNDcUFC1NcghtDKI2N4X2KihZTgFqOjE,&typo=1>


Symposium: Perspectives on Election 2020: #LookingBack<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118322&c=E,1,BiXn0Z4SzTzjbS3Vg3Y6YTpcBTi87azJQpVQ_mBVtOoJ24ReAIVD6_hDy01k1MixV5Eer_Jo90hGDO4BTrebwtHTFtoYrRatM_Nn-PFFKQxT-A3j0_26pq752Rs,&typo=1>
Posted on November 8, 2020 7:02 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d118322&c=E,1,bkRO3OoQ_JicahRsjqvpUghNfBuG7dDXO1Nr74DyzZEmmO4u751eCZOdG61jEQJ8trFaPYpbNmzZSV5xpVFjp1IIR5iyWZZc7UU9yZ_w5Qono3UzW4gIZSpdUFM,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,2DLUSm1AjbiDHJEcBSFbZ_5_3C-sE9y9ZeJJk0G-UhzmJxPWgQerjeGfbZ7iIVbMnis73b3VialOWq8ljQQNPtbGQvIOYbdpzKxnDINJciSkBWwkZJ80FYlhMQ,,&typo=1>

As a follow-up to the #2DaysOut symposium<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d117982&c=E,1,3xpAteMKn8ExzC9Vry4x-GOCASz6Rv4_VC2PDa30J_8MLkdcbnWumtNci1Yh8fuwEYEAd-WQbY48TkcHLnh9T4AR-lh0rojoNFkMp22sbcm7WZ0vIas,&typo=1> I ran on the Sunday before election day, I have asked the same group of leading election law scholars to weigh in with thoughts on where we stand with the election and election law looking back over the last week. The prompt is broad, and the perspectives are diverse. I’ll be posting these today and tomorrow.
<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118322&title=Symposium%3A%20Perspectives%20on%20Election%202020%3A%20%23LookingBack>
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Posted in #LookingBack<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d132&c=E,1,0PuJGdfXKeyuPqh0oTe8mpeRCazXqmUg0dy8wdwxS7XJUKYE57HgXxB19odfZJgD4EInQzM-jj63h8aF9gKHtziPpP8qI7lLzD4zjhVTNTsU&typo=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/<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.law.uci.edu%2ffaculty%2ffull-time%2fhasen%2f&c=E,1,473T9oaJcGn-JoxnQoJgkY2xMPEtZXiYMW6k53CKxv-mb11NKB3OG_PItdrWiJ2xyVujEVjGxhhE3l8PE87XGCZv58WyktxzHA0buhkzIYHWCmSzrA,,&typo=1>
http://electionlawblog.org<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f&c=E,1,RgP3YdzdO-TcQN1fxwPPbB8NoKxQloOALra0qUgXYarlKz3vkbdyNSiDOQMJpLbJlxW0mx1uQhbci63RKewQwHppt56_p6gUpjfgw51i&typo=1>

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