[EL] more news and commentary 11/9/20

[Rick Hasen]

“Barr tells DOJ to probe election fraud claims if they exist”<https://electionlawblog.org/?p=118408>
Posted on November 9, 2020 4:43 pm<https://electionlawblog.org/?p=118408> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/article/election-2020-joe-biden-donald-trump-elections-voting-fraud-and-irregularities-4eeb9e0c97301a23ae8d05b54c3144fd>:

Attorney General William Barr has authorized federal prosecutors across the U.S. to pursue “substantial allegations” of voting irregularities, if they exist, before the 2020 presidential election is certified, despite little evidence of fraud.

Barr’s action comes days after Democrat Joe Biden defeated President Donald Trump and raises the prospect that Trump will use the Justice Department to try to challenge the outcome. It gives prosecutors the ability to go around longstanding Justice Department policy that normally would prohibit such overt actions before the election is certified….

n a memo to U.S. attorneys, obtained by The Associated Press, Barr wrote that investigations “may be conducted if there are clear and apparently-credible allegations of irregularities that, if true, could potentially impact the outcome of a federal election in an individual State.”

He said any allegations that “clearly not impact the outcome of a federal election” should be delayed until after those elections are certified and prosecutors should likely open so-called preliminary inquiries, which would allow investigators and prosecutors to see if there is evidence that would allow them to take further investigative measures.

Barr does not identify any specific instances of purported fraud in the memo.

“While it is imperative that credible allegations be addressed in a timely and effective manner, it is equally imperative that Department personnel exercise appropriate caution and maintain the Department’s absolute commitment to fairness, neutrality and non-partisanship,” Barr wrote.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


New Trump Pennsylvania Lawsuit Attacks, Among Other Things, Different Procedures for Mail-In and In Person Voting, Something Quite Evident Before The Election and About Which The Campaign Could Have Sued<https://electionlawblog.org/?p=118406>
Posted on November 9, 2020 2:55 pm<https://electionlawblog.org/?p=118406> by Rick Hasen<https://electionlawblog.org/?author=3>

New complaint:<https://twitter.com/kadhim/status/1325927636821012480?s=20>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Pennsylvania: “State GOP lawmakers call for election audit after Trump’s fraud claims”; Ask for Certification Delay<https://electionlawblog.org/?p=118404>
Posted on November 9, 2020 2:34 pm<https://electionlawblog.org/?p=118404> by Rick Hasen<https://electionlawblog.org/?author=3>

York Dispatch:<https://www.yorkdispatch.com/story/news/2020/11/09/state-gop-lawmakers-call-election-audit-after-trumps-fraud-claims/6189591002/>

Republican leaders in the Pennsylvania House of Representatives have called for an audit of the Nov. 3 general election before certifying any results.

In a letter sent Friday to Gov. Tom Wolf, House Speaker Bryan Cutler said the state Supreme Court’s decision to extend the deadline for receipt of mail-in ballots was unconstitutional and that the 105,000 provisional ballots cast on Election Day are an indication that something wasn’t right.

“Clearly, the significant number of provisional ballots are indicative of voter issues across the commonwealth,” he stated.

Cutler also said poll watchers were denied access to “meaningfully observe the proceedings” of precanvassing and canvassing ballots and that Secretary of State Kathy Boockvar issued conflicting guidance about how to handle mail ballots that arrived after Nov. 3.

And, Cutler said, some counties began precanvassing ballots early to identify “defects” in the voter declarations so they could be fixed by the voters before counting began….

State Sen. Doug Mastriano, R-Adams County, along with fellow Republican state Sens. Michele Brooks and Scott Hutchinson, issued a joint memo<https://www.legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm?chamber=S&SPick=20190&cosponId=32610> Friday requesting a full recount of votes “in any counties where state law was broken, regardless of the Department of State’s instructions, as well as in any precinct where questionable actions were demonstrated.”

Democrats and local officials have denied that any fraud occurred during the Nov. 3 election, and Trump has failed to produce any specific evidence supporting his claims.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Detroit lawsuit alleges new problems at TCF counting center, citing 5 affidavits”<https://electionlawblog.org/?p=118402>
Posted on November 9, 2020 2:11 pm<https://electionlawblog.org/?p=118402> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News:<https://www.detroitnews.com/story/news/politics/2020/11/09/detroit-lawsuit-alleges-new-problems-tcf-counting-center/6223885002/>

A third lawsuit has been filed over Michigan’s vote count, this one filed in Wayne County Circuit Court and alleging problems with the counting process at TCF Center in Detroit.

The filing relies on the affidavits of four Republican poll challengers and a city of Detroit employee who said she worked in the city’s election headquarters through September, a satellite clerk’s office in October and the TCF Center the day after the election.

Besides the affidavits, no actual evidence of the alleged issues was presented.

The allegations range from restrictions on poll challengers to late arriving batches of absentee ballots to the encouragement of early voters to cast their ballots for Democratic presidential candidate Joe Biden. Election officials have said they allowed the maximum number of poll watchers for both Democrats and Republicans, only restricting access to any additional poll watchers because of COVID-19 concerns.

The suit, filed by the Great Lakes Justice Center, seeks an independent audit of the election, a halt to the certification of Wayne County votes, an order voiding the county’s election results and the initiation of a new election in Wayne County.

Judges in the Michigan Court of Claims and the Wayne County Circuit Court have already denied similar requests to stop the counting of Detroit ballots, citing a lack of evidence of wrongdoing.

The city of Detroit, a defendant in the case, rejected the suits as “another belated lawsuit, raising baseless allegations” to shake people’s confidence in the election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“GOP-led states back Trump’s legal drive to challenge election”<https://electionlawblog.org/?p=118400>
Posted on November 9, 2020 2:05 pm<https://electionlawblog.org/?p=118400> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/11/09/gop-states-back-trump-election-challenge-435437>

Republican-controlled state governments on Monday began throwing their weight behind President Donald Trump’s legal drive to challenge the results of last week’s presidential election.

The state of Ohio filed an amicus brief at the U.S. Supreme Court urging the justices to formally take up and resolve a dispute from Pennsylvania over a ruling that the state’s Supreme Court issued in September granting three extra days for ballots in last Tuesday’s election to be received by officials.

Ohio Attorney General Dave Yost’s friend of the court brief<https://www.supremecourt.gov/DocketPDF/20/20-574/160090/20201109121448319_Ohio%20Amicus%20-%20PA%20GOP%20v.%20Boockvar.pdf> aligned his state with arguments from Trump’s presidential campaign, the Pennsylvania Republican Party and a pair of GOP state legislative leaders that the Pennsylvania Supreme Court’s decision usurped powers that the Constitution reserves for state legislatures.

Meanwhile, a coalition of other GOP-controlled states led by Missouri was preparing to file its own amicus brief making similar arguments, according to Trump lawyer Jay Sekulow.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Without evidence, Georgia’s U.S. senators demand top elections official to resign”<https://electionlawblog.org/?p=118398>
Posted on November 9, 2020 2:03 pm<https://electionlawblog.org/?p=118398> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/politics/georgias-senators-seek-secretary-of-states-resignation-over-election/A3JUFWTWORDH7LTL2XSZ7ODWPA/>

Georgia’s two U.S. senators called on the state’s top elections official, a fellow Republican, to resign on Monday in a shocking attempt to appease President Donald Trump and his supporters ahead of consequential Jan. 5 runoffs.

U.S. Sens. Kelly Loeffler and David Perdue provided no evidence to back up claims of unspecified “failures” with the November election, overseen by Secretary of State Brad Raffensperger, echoing other Trump supporters who falsely claim widespread fraud contributed to his defeat.

The two were attempting to energize conservatives upset over Trump’s loss to President-elect Joe Biden, who is on the cusp of becoming the first Democrat to flip Georgia for the first time since 1992. Biden led Trump by over 11,500 votes<https://www.ajc.com/politics/live-updates-bidens-lead-in-georgia-grows-with-weekend-vote-counts/CDZ2PLBVPVC5JMDBWFJE3UOHGU/> on Monday afternoon.

Raffensperger said he’s not going to resign and will continue to ensure that the election is fair.

“My job is to follow Georgia law and see to it that all legal votes, and no illegal votes, are counted properly and accurately,” Raffensperger said. “As secretary of state, that is my duty, and I will continue to do my duty. As a Republican, I am concerned about Republicans keeping the U.S. Senate. I recommend that Senators Loeffler and Perdue start focusing on that.”

Their letter came just hours after the secretary of state’s office on Monday debunked several conspiracy theories about missing or mishandled ballots.

State election officials said claims that military ballots went missing are false, as are claims that ballots were dumped in Spalding County. Also false are allegations that ballots were harvested or results are inaccurate. The lone elections lawsuit filed in Georgia, involving ballot handling in Chatham County, was quickly dismissed<https://www.ajc.com/news/georgia-judge-dismisses-trump-campaign-case-in-chatham-ballot-dispute/YKBA6IYQKBB4JCSQEIJBQQT6QI/> last week.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


McConnell Won’t Recognize Biden Victory Yet<https://electionlawblog.org/?p=118396>
Posted on November 9, 2020 1:23 pm<https://electionlawblog.org/?p=118396> by Rick Hasen<https://electionlawblog.org/?author=3>

Video<https://twitter.com/CBSNews/status/1325898744475348992>

Here was my explanation yesterday<https://slate.com/news-and-politics/2020/11/trump-concede-threat-legitimacy-biden.html> for why this matters.

In the ordinary course of things, the Trump campaign would evaluate and almost certainly fold any litigation attempts quickly once it was clear they cannot change the result. But we are not in the ordinary course of things.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Could the Courts Change the Vote Counts?” I Talked to Brian Lehrer WNYC<https://electionlawblog.org/?p=118394>
Posted on November 9, 2020 9:04 am<https://electionlawblog.org/?p=118394> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen here.<https://www.wnyc.org/story/legal-challenge-update/?token=8ff57d25c7c5d8d7bc98595b73cebb08&content_type_id=24&object_id=1066284&_=d45159e1>
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


#LookingBack: Tuesday Has Come and Gone: Renewing My Plea on Behalf of the Voters (Franita Tolson)<https://electionlawblog.org/?p=118392>
Posted on November 9, 2020 8:23 am<https://electionlawblog.org/?p=118392> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a symposium submission from Franita Tolson<https://gould.usc.edu/faculty/?id=73521> (USC):

On Tuesday, after weeks of early voting, north of 145 million Americans will have cast ballots in this year’s election, the highest turnout in any presidential election in history.  With the flurry of lawsuits in just the last few days, this election cycle also promises to be the most litigated in this country’s history.  Two days before the election<https://electionlawblog.org/?p=117980>, I voiced concerns that, once a president emerges from our flawed process, we will learn to live with our dysfunction rather than working to improve the system so that it works for everyone.  Two days after<https://www.latimes.com/opinion/story/2020-11-06/joe-biden-donald-trump-election-lessons>, I worried that the postmortem of the election would ignore those who were unable to cast a ballot this year because the problem of voter suppression would get lost in the narrative of historic turnout.

Once the dust settles, it is unlikely that the lawsuits alleging irregularities<https://www.cnn.com/politics/live-news/election-results-and-news-11-04-20/h_9edaf31e789ed642c4cd0e0932442882> in a number of states will amount to much.  These cases are a Hail Mary pass by a president desperate to keep his job.  But let us not lose sight of the fact that this process is not about one person or one office.  We go through all of this drama so that “We the People” can have had a role in selecting their leaders.  Our democracy is majoritarian; our leaders serve at the pleasure of the people.  More than seventy-four million people voted for the winner of this year’s presidential election, yet we sat transfixed for four days because of the narrow margin in a handful of states that would determine if the popular vote winner carried the Electoral College.  Four days.  Like many of you, I am tired and annoyed because this is a silly way to elect a president.  It’s dumb, folks.  I know that it will take a lot of political will to change our status quo, but in the meantime, there are other problems we can address.

Here is my plea.  Regardless of how we choose our president (and we definitely need to work on that), the baseline of our system of elections should be the voter.  Not just any voter, but:

-the people who requested an absentee ballot in the Wisconsin primary but never received one<https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf>;

-the people who waited in line for 8 hours<https://www.fox5atlanta.com/news/long-lines-in-gwinnett-county-plague-voters-local-leaders-call-for-action> in Gwinnett County, GA to cast a ballot during early voting;

-the people who mailed in their ballots weeks in advance to give the Post Office time to deliver it (and literally had no assurances that the ballot would be delivered<https://www.cbsnews.com/news/usps-postal-service-delivery-rates-slower/>);

-the disabled voter who used a drive thru voting location to cast a ballot (only to worry later that the ballot might be invalidated by court order)<https://www.texastribune.org/2020/11/01/texas-drive-thru-votes-harris-county/>;

-the Harris County, Texas voter who thought that they could put their ballot in the drop box close to home (before the Governor limited the county, which is the size of Rhode Island, to one drop box<https://www.cnn.com/2020/10/27/politics/texas-supreme-court-drop-boxes/index.html>)

-the voter who lives more than 10 miles from the nearest state ID issuing office<https://www.brennancenter.org/our-work/research-reports/challenge-obtaining-voter-identification> and does not have transportation to get the identification so they can vote

-the individual with a felony conviction who could not find out the amount of the fines and fees that needed to be paid<https://www.tampabay.com/news/florida-politics/elections/2020/10/07/florida-ruled-felons-must-pay-to-vote-now-it-doesnt-know-how-many-can/> so that they could register to vote in time for this year’s election

-the voter in Michigan who had hoped to get a ride to the polls only to find that the ban on such rides had been reinstated by court order<https://www.freep.com/story/news/local/michigan/detroit/2020/10/22/appeals-michigan-law-bans-hiring-voter-transportation/3726365001/>

-the Indiana voter who was old enough to vote but not old enough to vote absentee<https://cbs4indy.com/news/politics/federal-appeals-court-denies-request-to-expand-absentee-voting-to-all-indiana-residents/>

Let’s not focus on the more than 145 million people who successfully cast a ballot, but the countless number who tried to vote and failed during both the primaries and general election.  Sadly, the courts have rarely focused on the burdens these needless regulations impose on voters, instead prioritizing the power of the states to impose these burdens.  According to the Supreme Court, this authority is plentiful.

Yet why should the states have a prerogative to disenfranchise that we, the voters, are bound to respect?  States should have obligations to make voting easier, not harder.  Every restriction should be justified, the rights of every voter respected.  Having a voter-centered democracy is not about making it difficult for states to run an election system.  It is about avoiding regulations that make it hard to vote for partisan gain in a system that is supposed to be about the voters, not the states.

However, if I am wrong that our system is voter-centered—and recent events suggest that is certainly possible—then we need to call ourselves something other than a democracy.  Don’t lull people into thinking we are the greatest democracy in the world if we are failing along many of the metrics that would identify this country as such.  America should not be able to claim the mantle of democracy while prioritizing the state over its citizens, nor does high turnout insulate America from criticism.  We had record turnout in 2020 because many citizens decided that artificial barriers would not deter them from voting, not because voting is as easy and accessible as it could be.  Voting should be easier in a democracy, and certainly easier in a global pandemic.

As we entertain the ongoing lawsuits challenging the election results—some of which are centered in questions about the scope of the state’s authority over elections—we ignore at our peril the question that may well determine the political future of this country: are we a democracy or not?  If the answer to this question is yes, then we need to focus on the voters.
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Posted in #LookingBack<https://electionlawblog.org/?cat=132>


#LookingBack: The Foundations for a Sound Electoral System (Michael Morley)<https://electionlawblog.org/?p=118390>
Posted on November 9, 2020 8:20 am<https://electionlawblog.org/?p=118390> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a symposium contribution from Michael Morley<https://law.fsu.edu/faculty-staff/michael-morley> (FSU):

Our experience with the 2020 presidential election confirms that a sound electoral system rests on three equally important pillars.  First, most fundamentally, all eligible voters must have a reasonable opportunity to cast a ballot safely and without substantial burden.  The point of an election is to ascertain the will of the people.  It cannot serve that basic function if some portion of the electorate is effectively excluded from participation.  More broadly, as I’ve repeatedly emphasized throughout the COVID pandemic, an electoral system must offer a range of distinct avenues for voting to be sufficiently robust to withstand a range of election emergencies, such as natural disasters, pandemics, terrorist attacks, power grid failures, and the like.  The more mechanisms for voting that a state allows, the less susceptible to any particular systemic risk the overall system becomes.

Moreover, election officials need flexibility to modify particular rules governing the electoral process to mitigate the impact of threats to the electoral system, so they can keep avenues for voting available despite outside threats.  This flexibility can come from either the general election code itself or election emergency laws.  The modifications that election officials made to in-person voting during the 2020 election, for example, in terms of both the types of polling locations to use, social distancing requirements, and the availability of personal protective equipment, allowed robust in-person voting to occur despite the serious threat of COVID.

Second, just as importantly, the system must be designed to minimize the potential for mistakes, accidents, irregularities, and even fraud.  Perhaps one of the most unfortunate aspects of modern political debates over elections is that concerns about systemic integrity have become politicized, with exaggerated claims of fraud often being wielded as a cudgel to reduce voting opportunities.  Historically, the desire to ensure accurate results, avoid irregularities, and prevent fraud has been bipartisan.  One of the main reasons we have a single, nationwide Election Day for federal elections, for example, was due to widespread congressional recognition of “pipelaying” and “colonizing”: political parties brought people from one state to another to vote in multiple states’ presidential or congressional elections, because they occurred on different days.   Many Reconstruction Era laws enacted with the unquestioned purpose of protecting the right to vote for African Americans in southern states contained strict prohibitions on voter and election fraud.  Indeed, ballot-box stuffing was among the tools white supremacists used to disenfranchise black voters.  Even the Voting Rights Act itself—perhaps the single most important statute protecting the right to vote—bolstered its critical antidiscrimination provisions with strong election integrity safeguards.  Adequate protections for the electoral process can undermine attempts to impeach the results of an election afterwards through baseless, vague, generalized claims about potential misconduct that might have occurred.

Third, finally, the system must appear legitimate to the general public.  In Buckley v. Valeo, the U.S. Supreme Court famously recognized that the Government has a compelling interest in preventing not only actual corruption, but the appearance of corruption, as well.  Having a fair, accurate, and inclusive electoral process is crucial.  In many ways, however, it is just as important that the public recognize the process to be fair, accurate, and inclusive.  This is where transparency is key.  To borrow another concept from campaign finance law, Justice Brandeis famously said, “Sunlight is the best disinfectant.”  In a bitterly contested election, election officials must assure that as much of the process as possible is subject to meaningful public scrutiny and observation.  Several post-election lawsuits were filed in this election cycle, for example, over whether campaign observers were seated closely enough to be able to monitor the processing of absentee ballots.  Election officials should not regard observers from campaigns and the press as unwelcome interlopers to be tolerated, but rather as essential partners in the process who can give the public assurance that nothing untoward occurred.  Just as importantly, such observers can provide outside, independent sets of eyes to identify potential mistakes or oversights.

There will be some situations where these three goals—expanding voting opportunities, ensuring accurate results, and bolstering public legitimacy—may be in tension with each other.  And reasonable people may disagree over which of these goals should take priority in such cases.  As we continue to reform the electoral process for future elections, we should focus primarily on win-win changes that bolster all of these goals simultaneously to the greatest degree possible.
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Posted in #LookingBack<https://electionlawblog.org/?cat=132>


--
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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