[EL] more news and commentary 11/10/20

[Rick Hasen]

“Disinformation and falsehoods about Biden’s victory flood social media and search engines.”<https://electionlawblog.org/?p=118446>
Posted on November 10, 2020 8:58 am<https://electionlawblog.org/?p=118446> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/live/2020/11/10/us/joe-biden-trump#disinformation-and-falsehoods-about-bidens-victory-flood-social-media-and-search-engines>

As President Trump and his team continue to circulate fabricated claims of a stolen election and voter fraud, their allies are flooding the internet search engines and social media with falsehoods intended to question the legitimacy of President-elect Joseph R. Biden Jr.’s victory.

This dynamic — the Trump team broadcasting misinformation, which is then plugged into the high-wattage amplifier of social media— was a defining feature of Mr. Trump’s campaign and administration and has, if anything, intensified in the wake of his defeat.

One particular brazen example surfaced early Tuesday. Some users who entered the search phrase “Biden loses PA” into Google — not an uncommon search given Mr. Trump’s claims — were directed to a page topped with a YouTube video entitled “Biden Loses Pennsylvania and Loses President-Elect Status.”

If the term “Biden loses” is entered, another video entitled “Breaking News!!! Biden Loses President-Elect Status” message appears for some users as the top video result.

These claims are false.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>
“‘Stop the Steal’ supporters, restrained by Facebook, turn to Parler to peddle false election claims”<https://electionlawblog.org/?p=118444>
Posted on November 10, 2020 8:57 am<https://electionlawblog.org/?p=118444> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/technology/2020/11/10/facebook-parler-election-claims/>

The leader of a Facebook group demanding an election recount told members this weekend he was worried about a crackdown by the social media giant.

“The bigger we get, the more nervous I’m getting,” the administrator of Nationwide Recount 2020 posted to the group’s hundreds of thousands of followers. “I do not want to lose this MAGA army!”Follow the latest on Election 2020<https://www.washingtonpost.com/elections/?itid=lk_interstitial_hub_election>

His backup plan “in case we disappear?” Find him on the right-leaning social media site Parler, instead.

As President Trump and his allies continue to contest President-elect Joe Biden’s victory, social media has become central to sustaining efforts to delegitimize the results. Yet those campaigns — which spilled onto the streets in protests this weekend — are resulting in the most high-stakes cat-and-mouse game for Facebook and other social media companies to date. The companies are banning groups and hashtags, altering search results, labeling posts, down-ranking problematic content and implementing a host of measures to ward off misinformation.

Since the election, Facebook and Twitter have labeled over a dozen posts by Trump and penalized some of his high-ranking campaign <https://www.washingtonpost.com/technology/2020/11/04/election-results-misinformation/?itid=lk_inline_manual_9> members and at least one family member. Facebook also took down a “Stop the Steal” network<https://www.washingtonpost.com/technology/2020/11/09/facebook-steve-bannon-misinformation/?itid=lk_inline_manual_9>, which promoted dozens of stories with unfounded claims of voter fraud, tied to Trump’s former chief strategist Stephen K. Bannon late Monday.

One sign of the impact of these actions is the renewed interest in Parler, which became the top new app download during the weekend on Apple’s App Store. The app, which has a free-speech doctrine and has become a haven for groups and individuals kicked off Facebook, experienced its largest number of single-day downloads on Nov. 8, when about 636,000 people installed it, according to market research firm Sensor Tower. Parler now boasts 7.6 million user accounts compared with 4.5 million about a week ago, said chief operating officer and investor Jeffrey Wernick.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>
“Trump starts raising money for new ‘Save America’ PAC, which will enable him to fund his future activities.”<https://electionlawblog.org/?p=118442>
Posted on November 10, 2020 8:53 am<https://electionlawblog.org/?p=118442> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/live/2020/11/10/us/joe-biden-trump#trump-starts-raising-money-for-new-save-america-pac-which-will-enable-him-to-fund-his-future-activities>

President Trump is directing money raised through his campaign’s breathless requests to “defend the election” into a new political action committee<https://www.nytimes.com/2020/11/09/us/politics/trump-pac.html> before his recount fund, a move that allows him greater flexibility to fund his future political endeavors.

The new group, called Save America, is a federal fund-raising vehicle known as a leadership PAC that has donation limits of $5,000 per donor per year. It can be used to underwrite Mr. Trump’s post-presidential political activities even as he continues to falsely claim that he won the 2020 race.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
The Downside of Humoring Trump and His Failure to Accept Election Defeat<https://electionlawblog.org/?p=118440>
Posted on November 10, 2020 8:45 am<https://electionlawblog.org/?p=118440> by Rick Hasen<https://electionlawblog.org/?author=3>

Washington Post:<https://www.washingtonpost.com/politics/trump-republicans-election-challenges/2020/11/09/49e2c238-22c4-11eb-952e-0c475972cfc0_story.html>

Behind the scenes, Trump advisers and allies are increasingly resigned to a Biden victory, according to people familiar with internal discussions, who, like others interviewed for this report, spoke on the condition of anonymity to share private conversations.

But few so far are actively discouraging the president or his campaign from pursuing all legal paths to contest the results. Only a smattering of Republican senators have acknowledged Biden’s victory, and there has been little coaxing on the part of senior GOP lawmakers to help Trump come to terms with his loss. Some said there is value in ensuring the integrity of this year’s results, while others described a chaotic and scattershot operation that they hoped would eventually push Trump to cooperate in a peaceful transfer of power.

“What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change,” said one senior Republican official. “He went golfing this weekend. It’s not like he’s plotting how to prevent Joe Biden from taking power on Jan. 20. He’s tweeting about filing some lawsuits, those lawsuits will fail, then he’ll tweet some more about how the election was stolen, and then he’ll leave.”

Still, Trump’s rhetoric has inflamed some of his supporters around the country, who have gathered in small “Stop the Steal” protests and declared that they do not have faith in the results.

The downside is convincing millions of people that the election was stolen and further delegitimizing the process, without any credible evidence of widespread fraud or problems. This is quite dangerous for the health of American democracy, as I argue in Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
AJC: Trump Pressured GOP Senators in Georgia to Cast Doubts on Election Integrity<https://electionlawblog.org/?p=118438>
Posted on November 10, 2020 8:42 am<https://electionlawblog.org/?p=118438> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/politics/politics-blog/the-jolt-the-orchestrated-push-to-discredit-georgias-election-sparks-more-gop-infighting/XOMUV6AGINBZDFVHKKCNY2RYGM/>

This was supposed to be the week that Republicans united behind U.S. Sens. Kelly Loeffler and David Perdue for a pair of Jan. 5 runoffs that could decide control of the Senate.

Instead, the two senators leveled unfounded claims of a disastrous “embarrassment” of an election at fellow Republicans who oversaw last week’s vote – and called for the resignation of Secretary of State Brad Raffensperger.

It was a brazen effort to appease Trump, who has falsely claimed electoral fraud despite no evidence of any wrongdoing as he and his supporters try to discredit Biden.

We’re told the president and his top allies pressured the two Republican senators to take this step, lest he tweet a negative word about them and risk divorcing them from his base ahead of the consequential runoff.

And shortly after, Trump and some of his inner circle started tweeting attacks at Raffensperger, who was already unpopular with many in the Georgia GOP base long before Tuesday’s vote.

WSB radio analyst Jamie Dupree called it “an orchestrated election move the likes of which I’ve never seen before.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“No Evidence of Systematic Fraud in U.S. Elections, International Observer Mission Reports”<https://electionlawblog.org/?p=118436>
Posted on November 10, 2020 8:36 am<https://electionlawblog.org/?p=118436> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/livecoverage/trump-biden-election-day-2020/card/XhlCZ4avYQb0jtdv7F3p>

 A team of international observers invited by the Trump administration has issued a preliminary report<https://s.wsj.net/public/resources/documents/PreliminaryReportoftheOASEOMUSA2020.pdf> giving high marks to the conduct of last week’s elections–and it criticizes President Trump for making baseless allegations that the outcome resulted from systematic fraud.

A 28-member delegation from the Organization of American States followed events in several locations across the U.S., including in the battleground states of Georgia and Michigan, both remotely and with observers at polling stations and counting centers.

“While the OAS Mission has not directly observed any serious irregularities that call into question the results so far, it supports the right of all contesting parties in an election, to seek redress before the competent legal authorities when they believe they have been wronged,” the report said. “It is critical however, that candidates act responsibly by presenting and arguing legitimate claims before the courts, not unsubstantiated or harmful speculation in the public media.”

The OAS assessment followed similar findings by an election observation team from the Organization for Security and Cooperation in Europe.

“Baseless allegations of systematic deficiencies, notably by the incumbent president, including on election night, harm public trust in democratic institutions,” Michael Georg Link, leader of the short-term OSCE observer mission, said last week.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Republican challenge to Maricopa County election involves fewer than 200 ballots, attorneys say”<https://electionlawblog.org/?p=118434>
Posted on November 10, 2020 8:34 am<https://electionlawblog.org/?p=118434> by Rick Hasen<https://electionlawblog.org/?author=3>

Arizona Republic:<https://www.azcentral.com/story/news/politics/arizona/2020/11/09/arizona-election-results-maricopa-county-challenge-involves-180-ballots/6229767002/>

Republican officials behind a lawsuit alleging poll workers “incorrectly rejected” votes cast in person on Election Day will make their case in front of a Maricopa County Superior Court judge later this week.

The defendants — Secretary of State Katie Hobbs, Maricopa County Recorder Adrian Fontes and the Maricopa County Board of Supervisors — also will have a chance to produce evidence and make oral arguments, according to Judge Daniel Kiley.

But it appears unlikely the case would affect the outcome of the presidential vote. A lawyer for the county said fewer than 200 ballots are at issue.

President Donald Trump’s reelection campaign filed the lawsuit Saturday, alongside the Republican National Committee and the Arizona Republican Party. The complaint claims Maricopa County poll workers disregarded procedures designed to give voters a chance to correct ballot mistakes, possibly affecting final vote counts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Breathless media coverage of election lawsuits plays right into Trump’s plan | Opinion”<https://electionlawblog.org/?p=118432>
Posted on November 10, 2020 8:32 am<https://electionlawblog.org/?p=118432> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas<https://fusion.inquirer.com/opinion/commentary/election-lawsuits-trump-biden-pennsylvania-voter-integrity-20201110.html> in the Philly Inquirer:

The news media should stop amplifying President Donald Trump’s numerous post-election lawsuits—at least until a judge rules that any of them have merit. The true goal of these cases is to undermine the integrity of the election and sow discord and distrust. Giving these challenges significant airtime simply plays into the that dangerous narrative.

“Trump’s lawsuits are getting mixed results<https://www.wsj.com/articles/election-2020-trumps-lawsuits-are-getting-mixed-results-11604617463>,” read one headline last week. “Trump campaign brings legal challenges in several battleground states with success in 1 suit<https://www.abajournal.com/news/article/trump-campaign-brings-legal-challenges-in-several-battleground-states-with-success-in-one-suit>” said another. And cable television is covering these cases to fill the time. But discussing them as if they have any credibility whatsoever can lead people to improperly question the validity of the vote casting and counting process, which has shown a decisive win for President-Elect Joe Biden.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Running List of Reasons the Trump Campaign’s Latest Pennsylvania Lawsuit Won’t Succeed and Won’t Affect the Election Outcome<https://electionlawblog.org/?p=118430>
Posted on November 10, 2020 7:56 am<https://electionlawblog.org/?p=118430> by Rick Hasen<https://electionlawblog.org/?author=3>

I’ve been getting a lot of press queries about the latest Trump filing in Pennsylvania, this one in federal court, seeking to delay the certification of the vote. I don’t have time to write up a full analysis, but I’m going to post (and periodically add to) this running list of fundamental problems with using the suit as a vehicle to alter the outcome of the presidential election:
·         The core idea of the complaint, that the different procedures for people to vote by mail versus voting in person constitutes and equal protection violation, is ludicrous.
·         First, these differences were obvious for months and nothing prevented the campaign from suing earlier over this; a late suit now is barred by laches (otherwise you give campaign an option to sue over things only if they lose and disenfranchise voters who relied on the legality of the existing system). See my October 29 post, Laches and Post-2020 Election Challenges: Why Many of the Republican Gambits Challenging Election Laws Will Come Too Late<https://electionlawblog.org/?p=117751>
·         Second, having different procedures for mail in and in person balloting does not create an equal protection violation under Bush v. Gore or any other authority I’m aware of. If this claim succeeded, it would mean that voting was unconstitutional across the entire country. The claim is especially weak when voters had the choice to vote using either system.
·         It is not clear that federal courts should even get involved here. The Electoral Count Act conceives of a state role, not a federal role, for resolving disputes over the election and there are strong reasons for abstention by a federal court when there are ongoing state procedures toward certification. A federal ruling could endanger the ability of the state to submit its electoral college votes by the Dec. 8 safe harbor deadline.
·         The other claims in the complaint are mostly retreads of issues that have been rejected legally, factually, or both in other lawsuits. There’s no proof of widespread fraud (or even a little bit of fraud).
·         There are not enough questionable ballots at issue to make a difference in Pennsylvania. Biden is currently ahead by about 45,000 votes, and may well be ahead by 100,000<https://twitter.com/Nate_Cohn/status/1326156366210326529?s=20> when all the votes are counted. Not only are there not enough ballots at issue; there’s no proof that illegal ballots were voted for Biden and not Trump, which should be necessary to meet the high burden of overturning an election result. Indeed, even when combined with the other cases in PA, there are not enough ballots at issue to make a difference. (There appear to be only about 7800 ballots<https://electionlawblog.org/?p=118426> at issue in the litigation over the 3 day extension of voting.)
·         Even if there were some way to stop certification in Pennsylvania, Biden’s electoral college lead does not depend upon Pennsylvania, so there’s no path absent litigation in multiple states raising crazy legal theories or those unsupported by facts to overturn election results. it would be like throwing three Hail Marys in a row.
·         [More to come]
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>
Wisconsin: “Ballot clerks asked for help. Lawmakers didn’t act. Disinformation followed.”<https://electionlawblog.org/?p=118428>
Posted on November 10, 2020 7:29 am<https://electionlawblog.org/?p=118428> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/elections/2020/11/09/clerks-asked-help-absentee-ballots-legislature-failed-election-trump-biden-wisconsin-voter-fraud/6195832002/?for-guid=b1fa6aa6-67c1-11ea-add6-0ea48be01751&utm_source=jsonline-Daily%20Briefing&utm_medium=email&utm_campaign=daily_briefing&utm_term=hero>

The wild claims came in thick and fast.

The morning after Election Day, President Donald Trump took to Twitter and claimed that people were “finding Biden votes all over the place — in Pennsylvania, Wisconsin, and Michigan.”

At a press conference in Philadelphia that afternoon, Trump’s personal lawyer Rudy Giuliani repeated the deceptive claim. “In Wisconsin, mysteriously at 4 in the morning, 120,000 ballots appeared,” Giuliani said. “Here come these ballots. Well, we have no idea if they really are ballots.”

Across social media, supporters picked up the narrative. “Between 3:30-4:30AM, they ‘found’ 140,000 mail in ballots for Biden in Wisconsin,” tweeted Nick Adams, a staunch pro-Trump political commentator. He added, falsely: “All for Biden. None for Trump.”

His misleading tweet was shared tens of thousands of times.

The false speculation that Biden’s overnight surge in Wisconsin was the result of mass voter fraud caused drama and headaches that could have been headed off years ago, local election clerks say, if Wisconsin lawmakers had listened to them.

For years, Wisconsin’s clerks have asked the Legislature for flexibility in counting absentee ballots<https://www.jsonline.com/story/news/2020/07/24/clerks-brace-influx-ballots-presidential-election-trump-absentee-vote-by-mail-wisconsin-november/5484050002/>. One bill last year proposed allowing clerks to start pre-processing absentee ballots the day before Election Day. Another proposed to at least allow in-person absentee voters to feed their ballots into tabulators.

Clerks said either measure would save them from the extraordinary stress of processing increasingly large numbers of absentee ballots on Election Day. Such flexibility became even more urgent as COVID-19’s spread made it clear that a record-breaking 1.8 million Wisconsinites could cast absentee ballots this election
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Trump’s Legal Blitz Isn’t Contesting Enough Votes to Win”<https://electionlawblog.org/?p=118426>
Posted on November 10, 2020 7:05 am<https://electionlawblog.org/?p=118426> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg Law:<https://www.bloomberglaw.com/exp/eyJjdHh0IjoiTFdOVyIsImlkIjoiMDAwMDAxNzUtYWYxZS1kOGNjLWFiNzUtYWY5ZmI1NGIwMDA1Iiwic2lnIjoidzVyQ0xYcWZwNzkrcnpTZnRQb3RTYUZpOXBJPSIsInRpbWUiOiIxNjA1MDEwMTU1IiwidXVpZCI6ImVLUE10MDV4ckVncXdtNzBLOXpmN3c9PXIvZWhKZzNQQWdCNGxHemNuUURNVnc9PSIsInYiOiIxIn0=?usertype=External&bwid=00000175-af1e-d8cc-ab75-af9fb54b0005&qid=7008854&cti=LSCH&uc=1320041183&et=NEWSLETTER&emc=blwnw_nl%3A2&source=newsletter&item=read-button&region=featured-story>

President Donald Trump’s hopes of reversing the outcome of the 2020 election in the courts are running into the reality that the numbers just aren’t there in terms of votes he can dispute — at least not yet.

In their most advanced legal challenge, the Trump campaign and the Republican Party are trying to have the U.S. Supreme Court toss Pennsylvania ballots that arrived after Nov. 3. But, with all but four of 67 counties reporting, state officials have only logged 7,800 such ballots, said Jacklin Rhoads, spokeswoman for Pennsylvania Attorney General Josh Shapiro.

Biden’s lead in Pennsylvania stood at more than 45,000 votes Monday afternoon, not including the late-arriving ballots at issue.

“If those ballots couldn’t change the election to make any difference to how Pennsylvania will be decided, then he doesn’t have a claim he can bring,” said Deborah Hellman<https://www.law.virginia.edu/faculty/profile/dh9ev/2299809>, a University of Virginia law professor.

Trump has suggested that he’s counting on the Supreme Court’s 6-3 conservative majority, including three justices he appointed, to rule for him in election disputes in any battleground states. But precisely what kind of disputes could result in the purge of enough votes to tilt the outcome in the president’s favor remains unclear. And even if he managed to somehow reverse the outcome in Pennsylvania, Trump would need to do the same in more states to actually notch enough electoral votes to win…

Guiliani said the campaign was looking at similarly challenging large numbers of ballots in Michigan and Wisconsin. The campaign has brought claims in Nevada and Arizona over smaller numbers of votes.

But legal experts said the idea that a court would take the drastic step of invalidating votes over such hypothetical claims was wishful thinking by Republicans.

“A court would not set aside the results of an election, or particular votes, based on violations of laws concerning observation of the counting process,” said Michael Morley<https://law.fsu.edu/faculty-staff/michael-morley>, an assistant law professor at Florida State University who’s worked on election emergencies and post-election litigation. “Courts will not disturb election results based on unproven generalized claims about the theoretical possibility of fraud.”…

Even if Trump were to somehow wrest away Pennsylvania and its 20 electoral votes through the courts, Biden would still have enough other states to clinch victory, according to the Associated Press. And Biden is also still leading in Georgia, which could gain him another 16 electoral votes.

“The prospects that a legal challenge in court could reverse the outcome in a way that would produce a Trump victory get harder and harder if it’s not just one state that he has to flip,” said Steven Huefner<https://moritzlaw.osu.edu/faculty/steven-f-huefner/>, deputy director of an election-law program at Ohio State University. “A challenge in a single state is a long shot. Then he’s got three long shots, or something, that he has to make all in succession.”

And most of those challenges are far weaker than the one that could soon go before the U.S. Supreme Court. While that case will turn on a relatively sober determination of whether legislators or courts can determine election deadlines, most of the Trump campaign’s other lawsuits depend on wild insinuations of fraud, backed up by little or no evidence.

Justin Levitt, a professor at Loyola Law School questioned whether such evidence would emerge.

“This assumes that the problem is evidentiary,” Levitt said. “If the problem is that there really hasn’t been widespread voter fraud, there’s no evidence to present.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“We asked nine legal experts about Trump’s latest lawsuit challenging election results in Pennsylvania. Their verdict: Dead on arrival.”<https://electionlawblog.org/?p=118424>
Posted on November 10, 2020 7:01 am<https://electionlawblog.org/?p=118424> by Rick Hasen<https://electionlawblog.org/?author=3>

USA Today reports<https://www.usatoday.com/story/news/politics/elections/2020/11/09/legal-experts-say-trumps-election-lawsuit-pennsylvania-baseless/6228914002/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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