[EL] ELB News and Commentary 11/9/20

[Rick Hasen]

Life Imitates Veep: “Teens, comedians and pranksters spam Trump’s voter fraud hotline”<https://electionlawblog.org/?p=118388>
Posted on November 9, 2020 7:16 am<https://electionlawblog.org/?p=118388> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/nation/2020/11/09/trump-voter-fraud-hotline-spam/>

n its search for viable challenges to President-elect Joe Biden’s victory, President Trump’s campaign set up a voter fraud hotline after Election Day, encouraging people to call in with reports of suspicious incidents.Follow the latest on Election 2020<https://www.washingtonpost.com/elections/?itid=lk_interstitial_hub_election>

“Help stop voter suppression, irregularities and fraud,” the campaign said in social media posts<https://twitter.com/EricTrump/status/1325101354810040323> promoting the hotline. “Tell us what you are seeing.”

Although the campaign has thus far failed to prove any voter fraud<https://www.washingtonpost.com/politics/trump-election-irregularities-claims/2020/11/08/8f704e6c-2141-11eb-ba21-f2f001f0554b_story.html?itid=lk_inline_manual_5>, the hotline has received no shortage of phone calls — all thanks to a viral campaign on TikTok and Twitter to clog the hotline with anti-Trump memes and absurd messages.

Campaign staffers in Virginia have been answering the calls, ABC News reported<https://abcnews.go.com/Politics/inside-trump-campaign-grapples-defeat-plowing-forward-legal/story?id=74082317>, fielding prank calls from Biden supporters who have played songs and movie clips, filed bogus reports, submitted the entire script for the 2007 film “Bee Movie,”<https://twitter.com/EvansBeard/status/1325003972697059328?s=20> or simply mocked Trump’s loss before hanging up.

Some people played rapper YG’s vulgar, anti-Trump rap<https://www.tiktok.com/@ktzbtch/video/6892487396789587205?_d=secCgsIARCbDRgBIAIoARI%2BCjx2a99%2BrNosfulx%2FOCxgoS9EK77X42bmHAKwxR9IlG95Hds5uUC3OFiW3REVzxJEX%2F4L9Jpg7zxqYu23pUaAA%3D%3D&language=en&preview_pb=0&sec_user_id=MS4wLjABAAAAMx7qznpiWmdPIEh6bq3f14SMii7ezcKTw6Htd9CB79pOu0tG4FTx7UGqmqMKT3I6&share_item_id=6892487396789587205&share_link_id=BD6123FC-6B9F-4B5F-8DC7-F402B46EEECB&timestamp=1604908279&tt_from=copy&u_code=d71ek2l96ddif8&user_id=6707444109664404486&utm_campaign=client_share&utm_medium=ios&utm_source=copy&source=h5_m>, “FDT,” which rose up the charts as people celebrated Biden’s win<https://www.independent.co.uk/news/world/americas/us-election-2020/yg-f-trump-biden-us-election-b1684096.html>. One woman said<https://www.tiktok.com/@caitlynjk95/video/6892593435014860037?_d=secCgsIARCbDRgBIAIoARI%2BCjzA1BbxTDJKV27m4k2k7m8DiWPnT9FycG%2BWdVY1L8h4QvXKNCOb6FgFSgQS4mvT%2B%2FO0rsEr%2BClUm%2FwhQN8aAA%3D%3D&language=en&preview_pb=0&sec_user_id=MS4wLjABAAAAs0JihxBX4JI157fYB6krg1f_KVsBoTs0mNNI3wU92SRX1qZ7w5RdbJjNtAEsqvTh&share_item_id=6892593435014860037&share_link_id=9D05240B-4955-4EA8-9C6C-5EB32F454ADB&timestamp=1604864170&tt_from=copy&u_code=d41jhelkcamicj&user_id=6641902906864533510&utm_campaign=client_share&utm_medium=ios&utm_source=copy&source=h5_m> she met the devil at her Georgia polling place and he challenged her to a fiddle contest, but if she lost, Biden would win. Sportswriter Jeff Pearlman simply recounted the elaborate plot<https://twitter.com/jeffpearlman/status/1325627834551820290?s=20> of the sitcom “Diff’rent Strokes.”

The Trump campaign did not immediately respond to a request for comment late Sunday. But some of the president’s allies, including son Eric Trump, responded to the reports of spam calls by blaming Democrats.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118388&title=Life%20Imitates%20Veep%3A%20%E2%80%9CTeens%2C%20comedians%20and%20pranksters%20spam%20Trump%E2%80%99s%20voter%20fraud%20hotline%E2%80%9D>
Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Life Imitates Veep: First Witness Giuliani Called Up at Press Conference to Talk About Voter Fraud was a Convicted Sex Offender<https://electionlawblog.org/?p=118386>
Posted on November 9, 2020 7:07 am<https://electionlawblog.org/?p=118386> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/states/new-jersey/story/2020/11/09/man-featured-at-giuliani-press-conference-is-a-sex-offender-1335241>

The first person Rudy Giuliani, the attorney for President Donald Trump, called up<https://youtu.be/__fR2H_Bsu4> as a witness to baseless allegations of vote counting shenanigans in Philadelphia during a press conference last week is a sex offender<http://darylmikellbrooks.wordpress.com/2011/08/19/meet-daryl-mikell-brooks/> who for years has been a perennial candidate in New Jersey.

“It’s such a shame. This is a democracy,” Daryl Brooks, who said he was a GOP poll watcher, said at the press conference, held at Four Seasons Total Landscaping in Northeast Philadelphia. “They did not allow us to see anything. Was it corrupt or not? But give us an opportunity as poll watchers to view all the documents — all of the ballots.”

Trenton political insiders watched with bemusement as Brooks took the podium.

Brooks was incarcerated in the 1990s on charges of sexual assault, lewdness and endangering the welfare of a minor for exposing himself to two girls ages 7 and 11, according to news accounts<https://www.nj.com/mercer/2011/06/palmer_denies_claims_he_orches.html>.

Brooks has run for various offices, including U.S. Senate and the House of Representatives.

POLITICO left a message at a number for Brooks listed online. Brooks said at the press conference that he’s from Philadelphia. POLITICO could not immediately ascertain if and when he moved there.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118386&title=Life%20Imitates%20Veep%3A%20First%20Witness%20Giuliani%20Called%20Up%20at%20Press%20Conference%20to%20Talk%20About%20Voter%20Fraud%20was%20a%20Convicted%20Sex%20Offender>
Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“As Biden Plans Transition, Republicans Decline to Recognize His Election”<https://electionlawblog.org/?p=118384>
Posted on November 9, 2020 6:55 am<https://electionlawblog.org/?p=118384> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/11/08/us/politics/republicans-trump-concede-election.html>

President-elect Joseph R. Biden Jr. prepared on Sunday to start building his administration, even as Republican leaders and scores of party lawmakers refrained from acknowledging his victory out of apparent deference to President Trump, who continued to refuse to concede.

With Mr. Biden out of the public eye as he received congratulations from leaders around the world, his team turned its attention to a transition that will swing into action on Monday, with the launch of a coronavirus task force and swift moves to begin assembling his team<https://www.nytimes.com/2020/11/06/us/politics/joe-biden-donald-trump-transition.html>.

But more than 24 hours after his election had been declared<https://www.nytimes.com/2020/11/07/us/politics/biden-election.html>, the vast majority of Republicans declined to offer the customary statements of good will for the victor that have been standard after American presidential contests, as Mr. Trump defied the results and vowed to forge ahead with long-shot lawsuits<https://www.nytimes.com/2020/11/06/us/politics/trump-election-voter-fraud.html> to try to overturn them.

While some prominent Republican figures, including the party’s only living former president, George W. Bush, called Mr. Biden to wish him well, most elected officials stayed silent in the face of Mr. Trump’s baseless claims that the election was stolen from him….

But Republicans’ silence suggested that even in defeat, Mr. Trump maintained a powerful grip on his party and its elected leaders, who have spent four years tightly embracing him or quietly working to avoid offending him or his loyal base. For many prominent Republicans, the president’s reluctance to accept the election results created a dilemma, making even the most cursory expression of support for Mr. Biden seem like a conspicuous break with Mr. Trump.

.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118384&title=%E2%80%9CAs%20Biden%20Plans%20Transition%2C%20Republicans%20Decline%20to%20Recognize%20His%20Election%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump continues to defy election results as world and some in GOP begin to move on”<https://electionlawblog.org/?p=118382>
Posted on November 9, 2020 6:53 am<https://electionlawblog.org/?p=118382> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports<https://www.washingtonpost.com/politics/trump-continues-to-defy-election-results-as-world-and-some-in-gop-begin-to-move-on/2020/11/08/13af7dca-21d2-11eb-952e-0c475972cfc0_story.html>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118382&title=%E2%80%9CTrump%20continues%20to%20defy%20election%20results%20as%20world%20and%20some%20in%20GOP%20begin%20to%20move%20on%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Supreme Court, Without Comment, Won’t Hear Suit By Progressives Seeking to Kill Super PACs<https://electionlawblog.org/?p=118379>
Posted on November 9, 2020 6:39 am<https://electionlawblog.org/?p=118379> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://www.supremecourt.gov/orders/courtorders/110920zor_1a72.pdf> is not a surprise at all and I was always mystified by anyone who thought this Court would agree to hear a campaign finance case to make things more regulatory. The trend is decidedly in the opposite direction.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118379&title=Supreme%20Court%2C%20Without%20Comment%2C%20Won%E2%80%99t%20Hear%20Suit%20By%20Progressives%20Seeking%20to%20Kill%20Super%20PACs>
Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


I’ll Be Participating in an ABA Webinar on the Election Tomorrow: “November 3, 2020: The View from November 10”<https://electionlawblog.org/?p=118377>
Posted on November 9, 2020 6:32 am<https://electionlawblog.org/?p=118377> by Rick Hasen<https://electionlawblog.org/?author=3>

Registration details:<https://americanbar.zoom.us/webinar/register/WN_yJ9N5Ao8R72-f4JXTiPvwA>

What will the legal landscape look like one week after Election Day? Predictions about election results vary from a peaceful count to disputed electors, protracted litigation, Congressional turmoil, and Supreme Court involvement. Existing laws, such as the Presidential Succession Act, the Electoral Count Act, and the 12th Amendment, leave room for interpretation about proper procedures. Distinguished experts in election law and constitutional law will examine the post-election landscape, the laws, the gaps, and the options we may face on Nov. 10 and thereafter. Likely questions include: What happens if a candidate for president or vice president becomes seriously ill before the election is resolved or before inauguration? When must states finalize counting ballots? Are all states applying “winner take all” rules to their electors? Can states enforce electors’ pledges to vote for the winner of the popular vote? Can states appoint different electors to vote for the loser of the popular vote? What happens if a state’s election results remain in dispute by the Dec. 8 deadline for certifying electors? What happens if competing slates of electors claim legitimacy in the Electoral College? Can the Senate President choose which elector slate to accept? What happens if there is no undisputed winner?

Speakers include:
Julie Fernandes – Associate Director for Institutional Accountability and Individual Liberty, Rockefeller Family Fund
Richard L. Hasen – Chancellor’s Professor of Law and Political Science, University of California, Irvine School of Law
Justin Levitt – Professor of Law and Gerald T. McLaughlin Fellow, Loyola Law School
Myrna Pérez – Director of Voting Rights & Elections, Democracy, Brennan Center for JusticeTime

Nov 10, 2020 02:00 PM in Eastern Time (US and Canada)<javascript:;>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118377&title=I%E2%80%99ll%20Be%20Participating%20in%20an%20ABA%20Webinar%20on%20the%20Election%20Tomorrow%3A%20%E2%80%9CNovember%203%2C%202020%3A%20The%20View%20from%20November%2010%E2%80%9D>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Republicans are split over whether to call the election over.”<https://electionlawblog.org/?p=118375>
Posted on November 8, 2020 9:13 pm<https://electionlawblog.org/?p=118375> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/live/2020/11/08/us/trump-biden?action=click&module=Spotlight&pgtype=Homepage#republicans-are-split-over-whether-to-call-the-election-over>

As top Republicans remained divided Sunday over congratulating President-elect Joseph R. Biden Jr. and declaring the election over, President Trump’s closest advisers continue to brief him on possible “legal remedies,” according to a White House official.

That path has been encouraged most strongly by Rudolph W. Giuliani, Mr. Trump’s personal lawyer, while most other Trump advisers have said privately that the chances of changing the results of the election through various court challenges are exceedingly slim.

Mr. Trump’s campaign announced on Sunday that Representative Doug Collins of Georgia will lead its recount team in the state, where the effort will begin as soon as the canvassing of ballots has concluded.

Some within the Republican Party have made it clear that it was time for the president to concede. On Sunday, former President George W. Bush became the highest-profile Republican to publicly declare the election over in defiance of Mr. Trump’s refusal to accept the results.

“I extended my warm congratulations” to Mr. Biden “and thanked him for the patriotic message he delivered last night,” Mr. Bush said in a statement released after he spoke with Mr. Biden by telephone. “I also called Kamala Harris to congratulate her on her historic election to the vice presidency. Though we have political differences, I know Joe Biden to be a good man who has won his opportunity to lead and unify our country.”

Although Mr. Bush said Mr. Trump had “the right to request recounts and pursue legal challenges,” his statement made clear that he did not think those efforts would succeed. Mr. Bush’s position could encourage other Republicans to speak out and increase pressure on Mr. Trump to stop fighting the results with unsubstantiated claims….

Republican leaders like Senator Mitch McConnell of Kentucky have refused to publicly acknowledge Mr. Biden’s victory<https://www.nytimes.com/2020/11/08/us/politics/republicans-trump-concede-election.html?searchResultPosition=1> without necessarily embracing Mr. Trump’s wild claims. Many of them have either remained silent or have straddled the line with statements calling for all legal votes to be counted, suggesting that the president should be permitted to file any lawsuits or call for any recounts allowed under the law.

Only a few well-known Republicans, like Senators Mitt Romney of Utah and Lisa Murkowski of Alaska, have congratulated Mr. Biden.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118375&title=%E2%80%9CRepublicans%20are%20split%20over%20whether%20to%20call%20the%20election%20over.%E2%80%9D>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Here are the GOP and Trump campaign’s allegations of election irregularities. So far, none has been proved.”<https://electionlawblog.org/?p=118373>
Posted on November 8, 2020 9:07 pm<https://electionlawblog.org/?p=118373> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/trump-election-irregularities-claims/2020/11/08/8f704e6c-2141-11eb-ba21-f2f001f0554b_story.html>

Republicans have made claims of election irregularities in five states where President-elect Joe Biden<https://www.washingtonpost.com/elections/2020/11/08/biden-trump-election-live-updates/?itid=lk_inline_manual_4> leads in the vote count, alleging in lawsuits and public statements that election officials did not follow proper procedures while counting ballots in Tuesday’s election.

So far, they have gone 0 for 5.

Since Election Day, President Trump has repeatedly claimed that a broad conspiracy of misdeeds — apparently committed in both Republican and Democratic states — had cost him the election.

“I WON THE ELECTION, GOT 71,000,000 LEGAL VOTES,” Trump tweeted on Saturday<https://twitter.com/realdonaldtrump/status/1325194709443080192>, after returning to the White House from his Virginia golf course. “BAD THINGS HAPPENED WHICH OUR OBSERVERS WERE NOT ALLOWED TO SEE.” Trump’s campaign has encouraged donors to contribute to a legal-defense fund so he can fight the cases in court.

But in the lawsuits themselves, even Trump’s campaign and allies do not allege widespread fraud or an election-changing conspiracy.

Instead, GOP groups have largely focused on smaller-bore complaints in an effort to delay the counting of ballots or claims that would affect a small fraction of votes, at best.

And, even then, they have largely lost in court.

The reason: Judges have said the Republicans did not provide evidence to back up their assertions — just speculation, rumors or hearsay. Or in one case, hearsay written on a sticky note.

The result has been a flurry of filings that Trump has cited as a reason to avoid conceding defeat — but, so far, have done nothing to prevent the defeat itself.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118373&title=%E2%80%9CHere%20are%20the%20GOP%20and%20Trump%20campaign%E2%80%99s%20allegations%20of%20election%20irregularities.%20So%20far%2C%20none%20has%20been%20proved.%E2%80%9D>
Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Trump campaign planning messaging blitz to fuel unsupported election questions”<https://electionlawblog.org/?p=118371>
Posted on November 8, 2020 9:01 pm<https://electionlawblog.org/?p=118371> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2020/11/08/politics/donald-trump-campaign-messaging-election-problems/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_allpolitics+%28RSS%3A+CNN+-+Politics%29>

President Donald Trump’s campaign is planning a messaging blitz to fuel its argument — unsupported by any evidence to date — that the President’s second term is being stolen from him through corrupt vote counts in battleground states, three sources familiar with the matter told CNN.

One of the ways it plans to do that is presenting obituaries of people the campaign will claim voted in the election and considering having campaign-style rallies to amplify the message, according to two of the sources.

So far, the litigation put forward by the campaign has not included any proof to support allegations of widespread fraud. And nothing campaign officials have put forward would change the outcome in any state.

But the President is being urged by his son-in-law and senior adviser Jared Kushner, attorney Rudy Giuliani and campaign adviser Jason Miller to hold rallies throughout the US pushing for recounts of votes, sources close to Trump told Jake Tapper. Kushner did not offer a comment on this story. Miller denied the story in a tweet. CNN has reached out to Giuliani for comment.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118371&title=%E2%80%9CTrump%20campaign%20planning%20messaging%20blitz%20to%20fuel%20unsupported%20election%20questions%E2%80%9D>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


#LookingBack: Redistricting and the 2020 Election (Nick Stephanopoulos<https://electionlawblog.org/?p=118369>
Posted on November 8, 2020 8:57 pm<https://electionlawblog.org/?p=118369> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a symposium contribution from Nick Stephanapoulos<https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos> (Harvard):

The following are a number of tentative thoughts about what the 2020 election means for redistricting—for both the plans currently in effect and the ones soon to be enacted.

1. At the moment, it appears that Democrats will win the House popular vote by 2-3 percentage points along with 225 or so seats. If that’s right, the 2020 House election will exhibit an impressive level of partisan fairness—an efficiency gap of less than 1 percent, to pick one common metric. This would be a substantial improvement over recent elections, when the House was significantly biased in a Republican direction. Even in 2018, the House as a whole had a pro-Republican efficiency gap of around 4 percent, since Democrats didn’t win as many seats as one would expect given their overwhelming popular vote margin (around 8 points). Before Tuesday, many observers would have thought that a Democratic popular vote advantage of only 2-3 points would lead to Republican control of the House.

2. The House’s diminished partisan bias probably has three explanations. One is the redrawing of certain plans (North Carolina and Pennsylvania) that had been exceptionally skewed in a Republican direction. These gerrymanders’ replacement with fairer maps helped make the House as a whole more balanced. Second, even under today’s polarized conditions, House incumbents enjoy a modest edge (around 2-3 points). This power of incumbency (while far from what it used to be) may have saved some Democrats swept into office in 2018, enabling them to eke out narrow wins in a much less favorable environment. Third, and most interestingly, the non-uniform vote shifts between 2016 and 2020 may have improved Democrats’ geographic position. Some of the most heavily Democratic areas (urban cores and black and Latino neighborhoods) swung in a Republican direction, thereby unpacking Democrats to some degree. At the same time, exurban and rural areas remained as red as in 2016 (or even redder), thereby packing many Republicans. And suburbs, home to a plurality of American voters, moved substantially toward the Democrats, benefiting them in the country’s biggest political battleground. This shows how simplistic the narrative is of a “natural” Republican redistricting advantage. Even modest vote shifts can negate much of this supposed edge.

3. Democrats are gnashing their teeth over their failure to flip legislative chambers in Arizona, Michigan, North Carolina, Pennsylvania, and Texas (among others). This failure, though, is unlikely to have severe redistricting consequences. Arizona and Michigan have independent redistricting commissions, so control of the political branches is irrelevant to the plans that are eventually enacted. North Carolina and Pennsylvania have state courts that have recently demonstrated their ability to police gerrymandering under state constitutional provisions. And as for Texas (and other states where political actors draw district lines without serious judicial limits), it’s important to be realistic about how effective a flipped chamber would have been. Odds are, it would have led to a court designing the map after the political branches deadlocked. But this court would likely have been a conservative state court or a federal court stacked with Trump appointees. Such a court may well have produced a plan almost as pro-Republican as the ones we’re now going to get from elected (and unchecked) Republicans.

4. Relatedly, the 2020 election largely confirms the redistricting picture that was already coming into focus before Tuesday. Thanks to Rucho, when a single party controls the line-drawing process, we’re likely to see unprecedented abuses: extreme and durable gerrymanders, frequent re-redistricting, non-contiguous districts, and so on. But thanks to developments over the last few years, there will be significantly fewer states where a single party enjoys unfettered control compared to the 2010 cycle. In previously gerrymandered states like Michigan, Ohio, and Virginia, a commission will draw the lines. In North Carolina and Pennsylvania, state courts will police the output of the political branches. In Wisconsin, divided government will probably yield a court-drawn map. Surveying the entire country, the only major states where Republicans will be able to freely gerrymander seem to be Georgia, Missouri, and Texas. For Democrats, the only such states are Illinois, Maryland, and Massachusetts. So the redistricting story of the 2020s may well be fewer—but more egregious—gerrymanders.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118369&title=%23LookingBack%3A%20Redistricting%20and%20the%202020%20Election%20(Nick%20Stephanopoulos>
Posted in #LookingBack<https://electionlawblog.org/?cat=132>, redistricting<https://electionlawblog.org/?cat=6>


#LookingBack: Two Truths at Once—How to Achieve Electoral Finality (Ned Foley)<https://electionlawblog.org/?p=118367>
Posted on November 8, 2020 8:52 pm<https://electionlawblog.org/?p=118367> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a symposium contribution from Ned Foley<https://moritzlaw.osu.edu/faculty/edward-b-foley/> (Ohio State):

 The nation has a new president-elect, Joe Biden.  Yet at the same time, there is no official president-elect, because the electoral process itself hasn’t yet reached that point.

How can both these assertions be true?  And if they are, how are Americans supposed to understand that?  Most importantly, how can Americans of opposite parties get on the same page, so that we can move forward together as one country, as our new president-elect in his impressive victory speech<https://www.mediaite.com/election-2020/karl-rove-commends-biden-harris-speeches-pitch-perfect-you-could-not-help-but-be-touched/> is urging us to do?

The key is to understand that when it comes to ending elections, there are actually two different processes at work, and they operate on different timelines.

The more familiar process is cultural. It’s the pageantry of democracy, developed over decades of traditional rituals, which usually occur on Election Night.  First, there come the projections of an Election College winner, from the networks and other media outlets once a candidate has apparently achieved popular-vote victories in enough states for an Electoral College majority.

Soon after those media projections, the losing candidate acknowledges the reality of those numbers and gives a public concession speech.  The winning candidate, in turn, gives a victory speech and, as a practical matter, is president-elect.

All of that, however, is far ahead of the official process for bringing the election to a close. Election Night tallies need to be converted into officially certified outcomes.  This requires the canvassing of returns, when the preliminary tallies are verified and provisional ballots are included in the totals, along with military and overseas ballots and any others that cannot be counted immediately.

Recounts may be necessary, not because of problems, but just as an extra step of verifying accuracy.  The various verification measures, so salutary for the election’s integrity, inevitably take time—days or even weeks, depending on the laws of different states, and how much verification is needed in any particular election.

But until the final certification of the popular vote occurs in enough states for an Electoral College majority, there is not yet an official president-elect in any sense.  Indeed, to be technical, under the Constitution there can’t be an official president-elect until the Electoral College actually casts its votes for president, which will occur this year on Monday, December 14.

As Americans, we never want to wait that long to say we have a president-elect.

This year it was hard enough to wait just four days for the media’s unofficial projections of a winner.

This wait has been blamed mostly on Pennsylvania’s failure to change its laws to permit early “pre-canvassing” of mailed ballots, in the way that Florida and other states allow. That change would have been good, but it would not have permitted an Election Night winner, even unofficially.  It was necessary to count enough provisional ballots for the media to “call” the state, and provisional ballots by definition cannot be pre-canvassed.

In 2008, Missouri could not be “called” for two weeks<https://www.politico.com/story/2008/11/its-official-mccain-wins-missouri-015802> because of provisional ballots, although most Americans ignored this fact because Missouri that year did not matter to reaching an Electoral College majority. This year, Arizona still<https://www.azcentral.com/story/news/politics/elections/2020/11/08/arizona-election-live-updates-2020-presidential-election/6194561002/> hasn’t been<https://www.nytimes.com/interactive/2020/11/03/us/elections/results-arizona-president.html> called by some outlets (and perhaps was called prematurely<https://www.cnn.com/2020/11/05/tech/arizona-fox-news-associated-press-projection/index.html> by others), even though it made the change to early pre-canvassing of mailed ballots advocated for Pennsylvania.

As difficult as it is, Americans need to get used to the fact that sometimes presidential elections will be “too close to call” for several days or even longer.

And what is the significance of these unofficial media “calls”?

Networks and newspapers immediately labeled Joe Biden “president-elect” as soon as they made their projections Saturday. That is their First Amendment right, although it has no governmental status.  But it was the basis on which Biden gave his victory speech—a victory that Trump defiantly will not acknowledge. Other elected Republicans are struggling with what to say.

GOP Senators, like Roy Blunt<https://twitter.com/RoyBlunt/status/1325477928373784577>, are not wrong when they observe that there is still a legal process to play out.  But they should do more to recognize, as Blunt himself signaled<https://www.nytimes.com/live/2020/11/08/us/election-results/a-republican-senator-said-it-was-unlikely-the-election-outcome-would-change>, that this legal process will end with the same conclusion as the media’s unofficial projections.

Former president George W. Bush struck the right note when he congratulated<https://www.cnn.com/2020/11/08/politics/george-w-bush-congratulates-biden/index.html> Joe Biden as “president elect” while simultaneously acknowledging Trump’s “right to request recounts and pursue legal challenges.”

The problem is Trump’s assertion of this right, based on all known facts<https://time.com/5908505/trump-lawsuits-biden-wins/>. It is honorable to challenge an opponent’s victory when there’s a good-faith basis for doing so, but it is dishonorable when there’s not<https://slate.com/news-and-politics/2020/11/trump-concede-threat-legitimacy-biden.html>.

Everyone knows that Trump will never be able to admit that Biden won fair-and-square.  Because of this, it is essential<https://www.politico.com/news/magazine/2020/09/13/how-to-know-if-the-election-is-actually-rigged-412557> that other Republicans do so.

While they can wait for the certification of results to say that Biden’s victory is official, they cannot wait to repudiate efforts to discredit that victory.

The message now must be Bush’s: the legal process, once complete, will confirm an outcome already “clear” and “fundamentally fair.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118367&title=%23LookingBack%3A%20Two%20Truths%20at%20Once%E2%80%94How%20to%20Achieve%20Electoral%20Finality%20(Ned%20Foley)>
Posted in #2DaysOut<https://electionlawblog.org/?cat=131>


#LookingBack: The Future of American Liberal Democracy (Jim Gardner)<https://electionlawblog.org/?p=118365>
Posted on November 8, 2020 8:32 pm<https://electionlawblog.org/?p=118365> by Rick Hasen<https://electionlawblog.org/?author=3>

The following symposium contribution is from Jim Gardner<https://www.law.buffalo.edu/faculty/facultyDirectory/GardnerJames.html> (Buffalo):

One week after the election, it now seems safe to say that Americans narrowly dodged the worst threat to liberal democracy since the outbreak of world war in 1939: a continuation of the illiberal authoritarian rule of Donald Trump. Despite threats of violence – some emanating from the president himself – the voting was peaceful, the counting routine, and the margin seemingly sufficient to secure the outcome from official obstruction, judicial or otherwise.

            While the result was encouraging, the future of American liberal democracy remains uncertain and precarious. I have three main worries.

Continuing authoritarian stimuli. When strongman leaders suffer clear and public setbacks to their hold on power, they can fall precipitously. Former supporters, their fear suddenly dispelled, sometimes line up to help kick the declining leader to the curb as he exits the political stage. If the strongman regime is then followed by a liberal democratic one, the political arena may be largely cleansed of authoritarian stimuli, and its prior adherents, the authoritarian signal lost, may thus drift back into the liberal democratic fold – subject, however, to the critically important proviso that the successor regime display some degree of performative success.

Might events in the U.S. unfold in this way? On one hand, Trump’s support seems to draw upon a coalition of illiberal populists, who deny longstanding American commitments to principles of citizen equality, popular sovereignty, the rule of law, and basic human rights; and regular Republicans, who retain those commitments but have supported Trump reluctantly out of habitual partisan loyalty. The latter group, possibly the larger of the two, might be inclined to return to the fold if sources of authoritarian stimuli in the political environment now go quiet.

On the other hand, it is far from clear how quiet those sources will become. As long as he has strength to move his thumbs, Trump is likely to continue constantly to tweet out dog-whistle stimuli to his loyal supporters. He has already threatened to run again in 2024, ensuring he remains salient to Republican party politics. And the pro-authoritarian media, including the authoritarian propagandists at Fox News, who did much to prepare the ground for Trumpian populism, can hardly be counted on to mute themselves over the next four years.

Authoritarianism in the states. Federalism provides opportunities for a political party<https://scholarship.law.columbia.edu/faculty_scholarship/1813/> or movement out of power at the national level to retain a significant base, and to exercise meaningful authority, at the subnational level. Many American states have over the last few years taken multiple steps down a globally well-trod path to authoritarianism<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3656508>. As a result, electoral rejection of authoritarianism at the national level may simply relegate it to pockets of dominance in various states. There it will remain protected, regionally popular, and politically salient, ready to re-emerge in national politics should an opportunity arise.

Authoritarianism in the federal courts. Ever since the final days of the John Adams administration, when Federalists frantically appointed supporters to federal judgeships, politicians have understood that partisan capture of the federal judiciary can offer a stronghold at the national level to a party temporarily turned out of national elective office. For forty years, Republican administrations have pursued this strategy diligently, and the federal courts, including the Supreme Court, now carry a majority of judges who have been vetted carefully for adherence to the party’s commitments.  During the run-up to last week’s election, these courts showed a marked tendency to uphold profoundly illiberal vote suppression measures<https://www.washingtonpost.com/politics/2020/10/31/trump-judges-voting-rights/?arc404=true> enacted by Republican-controlled state legislatures or Republican election regulators. The Supreme Court itself has taken up a position of federal judicial non-interference in state regulation of electoral processes, a position that enables authoritarian-inclined state officials to continue to insulate themselves from meaningful political competition.

In light of these considerations, it seems to me that any return in the United States to the kind of stable, reliable, consensual liberal democracy that prevailed during the last half of the twentieth century is uncertain and, at best, a long way off.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118365&title=%23LookingBack%3A%20The%20Future%20of%20American%20Liberal%20Democracy%20(Jim%20Gardner)>
Posted in #2DaysOut<https://electionlawblog.org/?cat=131>


#LookingBack: National Legislation Would Provide a More Stable Election Framework (Rick Pildes)<https://electionlawblog.org/?p=118363>
Posted on November 8, 2020 8:30 pm<https://electionlawblog.org/?p=118363> by Rick Hasen<https://electionlawblog.org/?author=3>

The following symposium contribution is from Rick Pildes<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=20200>:

Back on March 20th, in what must have been one of the first pieces to address how the election process would need to adjust to the emerging pandemic, I wrote<https://www.lawfareblog.com/reducing-one-source-potential-election-meltdown> that a massive shift to no-excuse absentee voting could “create[] the prospect that one or more battleground states might flip from an apparent ‘victory’ for one side on election night to a victory for the other by the time the official vote canvass is completed.”  In particular, “[i]f the presidential election this fall is close, with the margin of victory turning on a couple of close states, it is not hard to imagine President Trump seemingly pulling ahead on election night and in the important next-day coverage but then falling behind over the next week or more as those decisive states shift to the Democratic column when the full canvass of votes becomes complete. And it does not take a fertile imagination to picture what would then erupt in the courts, on social media and maybe in the streets.”

This eruption has indeed taken place in the courts and on social media.  But it appears, as of now, that we have dodged the bullet.  But just barely:  because Joe Biden’s margin of victory appears to rest (as of now) on four states, not one or two, including one state – Pennsylvania – where the margin is many tens of thousands of votes – destabilizing the result is not likely.  But had the outcome turned on two states with small margins, and long delayed vote counts, we might well have plunged into civil chaos or worse.  We cannot put ourselves in this position again.  From the experience of other democracies, we know that one of the most dangerous moments, often triggering spirals of violence, is a contested election for the head of government, with no institutions having the legitimacy to resolve that contest in a way the losers will accept.  The United States is no longer in a position to be complacent about that risk.

Our election system must therefore adapt to the reality of the political culture within which we now exist.  Let’s be clear-eyed about that culture, which is not likely to disappear soon:  a culture of deep distrust and suspicion, in which 25% of supporters on both sides this year believed their candidate could lose only if the process were rigged.  A culture in which social media will instantly inflame sinister interpretations of any problems in the process, real or perceived.  In this toxic environment, fomenting doubt on the integrity of the process has also become a tool politicians use to mobilize angered voters led to believe the election is about to be stolen.  Violence is latent, easily mobilized.

Instead of simply contesting policies and candidates, we are also now in endless battles over the ground-rules of the election process itself, even up to the eve of the election.  In state after state, we fight one battle after another over whether ballots must be requested and returned by this date or that date, and a myriad of other issues.  Last minute decisions from election officials, state courts, and federal courts shift the ground-rules back and forth.  We cast votes under the existing rules, then wait to learn whether courts will invalidate those rules after the fact.  None of this inspires confidence in the solidity and integrity of the process.

These are profound challenges, far beyond what election reform alone can address.  But in the area of election reform, this election provides new reasons we might be better off fighting out the ground-rules for national elections in Congress, rather than across 50 states.  Federalism has many advantages, but on a number of voting policies, it matters more that we have a clearly settled, stable policy well in advance of the election than the actual content of that policy.  Tradeoffs exist between maximizing every possible opportunity for voters to participate and other important values, such as bringing finality to elections sooner rather than later, in a political culture in which long delays inevitably will be exploited by one side or the other.  If we battled those tradeoffs out once and for all in Congress, the resolution would not just be nationally uniform, but more stable.  National politics involves a broader array of groups and generates a more thorough focus on these issues than in state legislatures.

National legislation would also minimize one of the worst features of our current system, which is that state election laws for national elections can be challenged in both state and federal court, thus tying these policies up in court all the longer.  Moreover, federal courts might well be more reluctant to overturn features of a congressional election code, given the greater legitimacy that attaches to the arduous, national lawmaking process.  Indeed, perhaps Congress could consider a provision barring legal challenges to the election code once it gets too close to the election.  Congressional legislation is also more difficult to change than state laws, given the structure of the national lawmaking process.

The best time to enact such legislation is probably during divided government.  If one side can ram down the throat of the other its maximal agenda, that solution is likely to be undone the next time the other side returns to power.  Policies underwritten by some degree of support from within each party, which would require compromise from both sides, are more likely to provide a fixed framework for elections.  To be sure, some issues about voting policy, such as non-discrimination ones, are so central they cannot be subject to compromise.  But many issues, such as those about deadlines, or methods of voting, and others involve legitimate tradeoffs between different democratic goals.  Resolving those kind of issues through national legislation, underwritten with cross-party support, would help solidify our election structure in the face of the stresses we managed to survive this time from the kind of political culture in which we find ourselves, unfortunately, living.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118363&title=%23LookingBack%3A%20National%20Legislation%20Would%20Provide%20a%20More%20Stable%20Election%20Framework%20(Rick%20Pildes)>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


My new one at Slate: What Happens If Trump Won’t Concede? (How Republicans are using the Matt Bevin strategy)<https://electionlawblog.org/?p=118337>
Posted on November 8, 2020 10:23 am<https://electionlawblog.org/?p=118337> by Rick Hasen<https://electionlawblog.org/?author=3>

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://electionlawblog.org/?p=118306> 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://electionlawblog.org/?p=108280> 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://www.fairvote.org/recounts>.
[Share]<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)>
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201109/bcfdcecb/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/20201109/bcfdcecb/attachment.png>