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

Wed Nov 11 07:48:23 PST 2020

My new one at The Atlantic: “Trump Needs Three Consecutive Hail Mary Passes; The president’s litigation strategy is unlikely to succeed, but it’s doing great harm in the meantime.”<https://electionlawblog.org/?p=118484>
Posted on November 11, 2020 7:45 am<https://electionlawblog.org/?p=118484> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://www.theatlantic.com/ideas/archive/2020/11/trump-needs-three-consecutive-hail-mary-passes/617063/> for The Atlantic. It begins:

Despite the clear math showing that Joe Biden has won the election, President Donald Trump has refused to concede. He has directed his legal team to keep on fighting to try to overturn the results of the election, including in a new 105-page federal-court filing<https://cdn.donaldjtrump.com/public-files/press_assets/2020-11-09-complaint-as-filed.pdf> in Pennsylvania. These legal maneuvers are unlikely to pay off in the form of a second term for Trump; he would need the equivalent of three consecutive Hail Mary passes to stay in office.

But what Trump and his legal team are doing can nevertheless cause real harm to the country going forward, should millions of people believe Trump’s false statements that Biden won the election through fraud. It is this near certainty, and not the long-shot possibility of Trump staying in office, that is reason for grave concern….

The lawsuits filed in Pennsylvania and elsewhere are highly unlikely to go anywhere. The most recent complaint filed in federal court in Pennsylvania amounts to virtually nothing. Its core idea, that the different procedures for voting by mail and voting in person constitute an equal-protection violation, is ludicrous.

First, the differences between mail-in and absentee voting were obvious for months and nothing prevented the Trump campaign from suing earlier over this; a late suit now is barred by a legal doctrine called laches<https://electionlawblog.org/?p=117751>, which says that you cannot simply wait until after an election you don’t win to sue over an election problem you could see beforehand.

Further, having different procedures for mail-in and in-person balloting does not create an equal-protection violation. If this claim succeeds, 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. The other claims in the complaint are mostly retreads of issues that have been rejected legally, factually, or both in other lawsuits. There has been no proof of widespread fraud.

Even if some of the claims were to have merit, a strong argument exists that federal courts should not get involved. The Electoral Count Act, passed after the disputed 1876 presidential election, conceives of a state role, not a federal role, for resolving fights over the election, and federal courts will likely want to let states decide. A federal ruling could endanger the ability of a state to submit its Electoral College votes by the December 8 safe-harbor deadline; Congress cannot challenge Electoral College slates submitted by that date.

More important, this quixotic lawsuit presents no path to an ultimate Trump victory. The Trump campaign has not provided a good reason for a federal court to step in and delay certification. Nor has it provided any evidence showing that there were tens of thousands of ballots cast illegally for Biden or of legal ballots not counted for Trump. That kind of showing should be necessary to get any relief, and likely from a state rather than a federal court. 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.

And even if Trump somehow overturned the results in Pennsylvania, that would not be enough to flip the results in the Electoral College. In Arizona, where Biden now leads by about 15,000 votes, the Trump campaign has filed a lawsuit that could call at most 200 votes<https://www.azcentral.com/story/news/politics/arizona/2020/11/09/arizona-election-results-maricopa-county-challenge-involves-180-ballots/6229767002/> into question. And even overturning Pennsylvania and Arizona is not enough to make up for Biden being 36 votes beyond the Electoral College threshhold.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

Before the Election, Republicans Complained to the Supreme Court About Ballot Deadlines in Pennsylvania and North Carolina Under the Same Theory, But Now They are Perfectly Fine with Counting Late Ballots in NC Where They are Leading<https://electionlawblog.org/?p=118482>
Posted on November 11, 2020 7:40 am<https://electionlawblog.org/?p=118482> by Rick Hasen<https://electionlawblog.org/?author=3>

It is worth remembering that Republicans went to the United States Supreme Court on an emergency basis in both Pennsylvania and North Carolina raising the same theory: that the extension of the deadline for the receipt of absentee ballots was unconstitutional under the “independent state legislature” doctrine because it usurped the power of the state legislature. In PA, the state Supreme Court extended the time for the receipt of absentee ballots to Nov. 6, relying on the state Constitution. In NC, the state election board negotiated a settlement with those suing over voting rules to extend the deadline for the receipt of absentee ballots to Nov. 12, relying on power delegated to it by the legislature to do such things.

Although Republicans sought emergency relief (under a controversial theory) to stop the counting of the late arriving ballots in both states, they’ve dropped the claim in North Carolina but continue to pursue it after the election in Pennsylvania.

It is no mystery as to why: Republicans are ahead in North Carolina, and they want to keep counting votes to pad the lead of Trump and Senate candidate Tillis. But they are behind in PA and are seeking to stop the counting of those late arriving votes. (As Rick P. noted<https://electionlawblog.org/?p=118462>, the number of ballots at stake in PA is 10,000 not nearly enough to affect the outcome in the state).

Of course if the theory that Republicans were advancing is correct, it should apply equally to both states. This is true of lots of other theories too, like the crazy one advanced in the new federal case in PA that allowing people to vote by mail or in person is unconstitutional because different procedures apply to voting in these different ways.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“‘A grand scheme’: Trump’s election defiance consumes GOP”<https://electionlawblog.org/?p=118480>
Posted on November 11, 2020 7:31 am<https://electionlawblog.org/?p=118480> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/11/11/trump-fraud-claims-gop-435884>

It will be nearly impossible for Republicans to alter the outcome or prevent Biden from taking office. Counting all the states where he currently leads in voting, Biden has 306 electoral votes. In Michigan, Biden’s lead at the moment is more than 10 times larger than Trump’s winning margin was there in 2016. To date, Trump’s campaign has yet to produce evidence in any state of the kind of widespread ballot fraud the president alleges.

Yet one week after the election, there is no sign any of that is sinking in. Instead, the controversy seems to be metastasizing within GOP circles, as the party unites behind an idea that threatens to distract Washington and state capitals for weeks amid an ongoing pandemic and a looming transition of government.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Postal worker recanted allegations of ballot tampering, officials say”<https://electionlawblog.org/?p=118477>
Posted on November 11, 2020 7:22 am<https://electionlawblog.org/?p=118477> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/investigations/postal-worker-fabricated-ballot-pennsylvania/2020/11/10/99269a7c-2364-11eb-8599-406466ad1b8e_story.html>

A Pennsylvania postal worker whose claims have been cited by top Republicans as potential evidence of widespread voting irregularities admitted to U.S. Postal Service investigators that he fabricated the allegations, according to three officials briefed on the investigation and a statement from a House congressional committee.Follow the latest on Election 2020<https://www.washingtonpost.com/elections/?itid=lk_interstitial_hub_election>

Richard Hopkins’s claim that a postmaster in Erie, Pa., instructed postal workers to backdate ballots mailed after Election Day was cited by Sen. Lindsey O. Graham (R-S.C.) in a letter to the Justice Department calling for a federal investigation. Attorney General William P. Barr subsequently authorized <https://www.washingtonpost.com/national-security/trump-voting-fraud-william-barr-justice-department/2020/11/09/d57dbe98-22e6-11eb-8672-c281c7a2c96e_story.html?itid=lk_inline_manual_4> federal prosecutors to open probes into credible allegations of voting irregularities and fraud before results are certified, a reversal of long-standing Justice Department policy.

But on Monday, Hopkins, 32, told investigators from the U.S. Postal Service’s Office of Inspector General that the allegations were not true, and he signed an affidavit recanting his claims, according to officials who spoke on the condition of anonymity to describe an ongoing investigation. Democrats on the House Oversight Committee tweeted<https://twitter.com/oversightdems/status/1326289047933816836?s=21> late Tuesday that the “whistleblower completely RECANTED.”

Hopkins did not respond to messages from The Washington Post seeking comment through his social media accounts, family members and phone messages earlier this week. But in a YouTube video he posted Tuesday night, he denied recanting. “I’m here to say I did not recant my statements. That did not happen,” he said.

The reversal to investigators comes as Trump has refused to concede to President-elect Joe Biden (D), citing unproven allegations about widespread voter fraud in an attempt to swing the results in his favor. Republicans held up Hopkins’s claims as among the most credible because he signed an affidavit swearing that he overheard a supervisor instructing colleagues to backdate ballots mailed after Nov. 3.

The Trump campaign provided that affidavit to Graham, who in turn asked the Justice Department and FBI to launch an investigation…

Hopkins’s allegations, without his name, were first aired last week by Project Veritas, an organization that uses deceptive tactics to expose what it says is bias and corruption in the mainstream media. Hopkins agreed to attach his name to the allegations late last week. He was instantly celebrated by Trump supporters.

Project Veritas founder James O’Keefe on Saturday hailed Hopkins as “an American hero” on Twitter. A GoFundMe page created under Hopkins’s name had raised more than $136,000 by Tuesday evening, with donors praising him as a patriot and whistleblower. The fundraising page was removed by GoFundMe after this story was published Tuesday, a spokesman for the platform said.

“Your donations are going to help me in the case I am wrongfully terminated from my job or I am forced into resigning due to ostrizization [sic] by my co-workers,” the page states. “It will help me get a new start in a place I feel safe and help me with child support until I am able to get settled and get a job.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How we can be confident that Trump’s voter fraud claims are baloney”<https://electionlawblog.org/?p=118475>
Posted on November 10, 2020 7:58 pm<https://electionlawblog.org/?p=118475> by Rick Hasen<https://electionlawblog.org/?author=3>

Henry Olsen WaPo column<https://www.washingtonpost.com/opinions/2020/11/10/we-can-be-confident-trump-voter-fraud-claims-are-baloney/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Shock and frustration inside Justice Dept. over Barr’s vote-investigation memo”<https://electionlawblog.org/?p=118473>
Posted on November 10, 2020 7:53 pm<https://electionlawblog.org/?p=118473> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/national-security/william-barr-trump-election-fraud/2020/11/10/ae2d1d5e-239d-11eb-a688-5298ad5d580a_story.html>:

Current and former Justice Department officials said Tuesday they were stunned and frustrated by Attorney General William P. Barr’s move to loosen internal restrictions on how and when federal prosecutors investigate certain election-fraud cases before the results are certified — and worried that Barr was aiding President Trump’s effort to cast doubt on his defeat.

The blow to morale was felt most acutely in the Justice Department’s criminal division, which is typically a key player in prosecuting election-related offenses and setting department policy in that area, people familiar with the matter said. Like others, they spoke on the condition of anonymity to discuss internal Justice Department deliberations.

Some weeks ago, when Barr had first proposed the move, officials in the criminal division — including political leadership — had pushed back vigorously and thought they had dissuaded the attorney general from taking such a step, the people said. Then, without warning, Barr’s memo hit their email inboxes Monday night.

Within hours, the head of the department’s election-crimes branch, Richard Pilger, told colleagues he was stepping down from that job and taking a lesser position at the department, citing the new guidance, as others privately seethed.

“It’s hard to know yet whether this amounts to something worrisome or whether it’s just pleasing the boss,” said Richard L. Hasen, a law professor at the University of California at Irvine who wrote a book, “Election Meltdown,” about the growing public distrust of election results.

Hasen said that the nuts and bolts of 2020’s election went fairly well, particularly considering the extra complication of a pandemic.

“The real problems came because of the delay in counting the votes,” Hasen said, faulting Republican legislators in some states who did not support early counting, which he said created “space for all kinds of conspiracy theories,” including from the president.

Current Justice Department officials said they were puzzled by what could have motivated Barr’s move. His memo suggested prosecutors could take public steps in cases “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.”

But current and former Justice Department officials said they were unaware of any such cases amid the myriad allegations raised by the Trump campaign and the president’s supporters. Even if judges agreed with the campaign, the officials said, the challenges generally did not seem to implicate enough votes to change any results.
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“As states press forward with vote counts, Trump advisers privately express pessimism about heading off Biden’s win”<https://electionlawblog.org/?p=118471>
Posted on November 10, 2020 7:49 pm<https://electionlawblog.org/?p=118471> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/trump-challenges-state-count/2020/11/10/45148fac-2378-11eb-8672-c281c7a2c96e_story.html>:

Six states where President Trump has threatened to challenge his defeat continued their march toward declaring certified election results in the coming weeks, as his advisers privately acknowledged that President-elect Joe Biden’s official victory is less a question of “if” than “when.”

Trump began the day tweeting about “BALLOT COUNTING ABUSE” as he and his allies touted unproven claims that fraud had tainted the election in Arizona, Georgia, Nevada, Pennsylvania, Michigan and Wisconsin. Vice President Pence gave a presentation to Republican senators on Capitol Hill about new litigation expected in Pennsylvania, Michigan and Georgia — imploring them to stick with the president, according to several Republicans in the room.

But even some of the president’s most publicly pugilistic aides, including White House Chief of Staff Mark Meadows, Republican National Committee Chairwoman Ronna McDaniel and informal adviser Corey Lewandowski, have said privately that they are concerned about the lawsuits’ chances for success unless more evidence surfaces, according to people familiar with their views.

Trump met with advisers again Tuesday afternoon to discuss whether there is a path forward, said a person with knowledge of the discussions, who, like others interviewed for this report, spoke on the condition of anonymity to describe internal discussions. The person said Trump plans to keep fighting but understands it is going to be difficult. “He is all over the place. It changes from hour to hour,” the person said.

In the states, Democratic and some Republican officials said they have seen no evidence of fraud on a scale sufficient to overturn the results. “There is no evidence of widespread voter fraud,” one GOP official in Georgia said.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Times Called Officials in Every State: No Evidence of Voter Fraud”<https://electionlawblog.org/?p=118469>
Posted on November 10, 2020 7:44 pm<https://electionlawblog.org/?p=118469> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/11/10/us/politics/voting-fraud.html>

Election officials in dozens of states representing both political parties said that there was no evidence that fraud or other irregularities played a role in the outcome of the presidential race, amounting to a forceful rebuke of President Trump’s portrait of a fraudulent election.

Over the last several days, the president, members of his administration, congressional Republicans and right wing allies have put forth the false claim that the election was stolen from Mr. Trump and have refused to accept results that showed Joseph R. Biden Jr. as the winner.

But top election officials across the country said in interviews and statements that the process had been a remarkable success despite record turnout and the complications of a dangerous pandemic.

“There’s a great human capacity for inventing things that aren’t true about elections,” said Frank LaRose, a Republican who serves as Ohio’s secretary of state. “The conspiracy theories and rumors and all those things run rampant. For some reason, elections breed that type of mythology.”

Steve Simon, a Democrat who is Minnesota’s secretary of state, said: “I don’t know of a single case where someone argued that a vote counted when it shouldn’t have or didn’t count when it should. There was no fraud.”

“Kansas did not experience any widespread, systematic issues with voter fraud, intimidation, irregularities or voting problems,” a spokeswoman for Scott Schwab, the Republican secretary of state in Kansas, said in an email Tuesday. “We are very pleased with how the election has gone up to this point.”

The New York Times contacted the offices of the top election officials in every state on Monday and Tuesday to ask whether they suspected or had evidence of illegal voting. Officials in 45 states responded directly to The Times. For four of the remaining states, The Times spoke to other statewide officials or found public comments from secretaries of state; none reported any major voting issues.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Trump solicits ‘election defense’ donations that also finance his new leadership PAC”<https://electionlawblog.org/?p=118467>
Posted on November 10, 2020 7:42 pm<https://electionlawblog.org/?p=118467> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/trump-donations-debt/2020/11/10/024e1c80-237b-11eb-a688-5298ad5d580a_story.html>

In the wake of the election, President Trump’s supporters have been peppered with texts and emails asking for donations to support legal battles contesting his loss to President-elect Joe Biden.

“We can’t allow the Left-wing MOB to undermine our Election,” one missive says. Another appeal asks donors to give to an “EMERGENCY Wisconsin Recount Fund,” which it claims was “just activated” to request a recount in the state.

But details outlined in the fine print show that a small portion of the donations would go toward these “election defense” funds to support recounts and lawsuits in several swing states.

The majority of each donation goes to a political action committee called Save America, which Trump set up in recent days and will allow him to support candidates and maintain political influence in Washington even after leaving office.ADADVERTISING

The “leadership PAC” is a loosely regulated fundraising vehicle that allows current and former elected officials to raise and spend money to maintain relationships with donors, and help their political allies.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“Fear of losing Senate majority in Georgia runoffs drives GOP embrace of Trump’s unfounded claims of election fraud”<https://electionlawblog.org/?p=118465>
Posted on November 10, 2020 7:37 pm<https://electionlawblog.org/?p=118465> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/georgia-mcconnell-trump-senate/2020/11/10/76bb80d6-2389-11eb-8672-c281c7a2c96e_story.html>

Fear over losing the Senate majority by falling short in the upcoming runoff elections for two U.S. Senate seats in Georgia has become a driving and democracy-testing force inside the GOP, with party leaders on Tuesday seeking to delegitimize President-elect Joe Biden’s victory as they labored to rally voters in the state.<https://www.washingtonpost.com/elections/?itid=lk_interstitial_hub_election>

Those intertwined efforts threaten to disrupt Biden’s hopes of establishing a smooth transition as Republicans in Washington and Georgia, worried about dispiriting the president’s core supporters, increasingly echo his unfounded claims of election fraud and back his refusal to concede.

With their power on the line and Trump still the party’s lodestar, Senate Majority Leader Mitch McConnell (R-Ky.) and his allies have made clear that they are now fixated on Jan. 5 — the date of the runoff elections — rather than on Jan. 20, when Biden will be sworn in as the nation’s 46th president.

“These runoffs have become the political equivalent of ‘Braveheart’ where everyone paints their face blue and just charges across the field,” said Ralph Reed, a Georgia-based Republican and founder of the Faith and Freedom Coalition. “If we can get the Trump vote back out in the suburbs, we should be able to get this done. But it will be very hard and extremely competitive.”

Two Republican losses in January would split the Senate equally between Democrats and Republicans, giving the incoming vice president, Kamala D. Harris, a tie-breaking vote and Democrats control of all levers of government.

McConnell threw his support behind Trump’s legal challenges and said the president is “100 percent within his right” to pursue litigation, even though the Trump campaign has not produced evidence of widespread fraud. And while his position interferes with Biden’s attempt to organize an administration amid a global pandemic, McConnell said Tuesday his stance “should not be alarming.”

Those remarks came as the two GOP incumbents facing runoff campaigns, Sens. David Perdue and Kelly Loeffler, stood by their call for Georgia Secretary of State Brad Raffensperger to resign, after alleging mismanagement and a lack of transparency without providing any evidence.

Raffensperger, a Republican, said that he will stay in office and that the process of reporting results had been orderly and legal. But he faces continued scrutiny, with several U.S. House members from Georgia and the state party issuing a letter Tuesday calling for more investigations of the election.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

About 10,000 Ballots Arrived in PA the Three Days after Election Day<https://electionlawblog.org/?p=118462>
Posted on November 10, 2020 5:43 pm<https://electionlawblog.org/?p=118462> by Richard Pildes<https://electionlawblog.org/?author=7>

That’s the number the Secretary of State’s Office is reporting, according<https://twitter.com/Elaijuh/status/1326319919873601536> to the Inquirer’s excellent journalist covering these issues, Johnathan Lai.

That would not be 10,000 votes for Biden, of course. If these ballots broke the way other absentees in PA did, about 78% would be for Biden. But that percentage might not be right, because we have seen in some other states that late-arriving absentees broke more Republican than earlier ones. But using that 78% as a rough figure, that would mean Biden would net 5,600 votes from these ballots.

I am not sure whether the votes from these ballots are already included in the current PA vote totals or will soon be added to those totals. Either way, as many of us predicted in advance, the total is not significant compared to Biden’s margin in PA.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Pa. GOP lawmakers to probe unverified fraud claims in election they largely won”<https://electionlawblog.org/?p=118460>
Posted on November 10, 2020 2:08 pm<https://electionlawblog.org/?p=118460> by Rick Hasen<https://electionlawblog.org/?author=3>

Philly Inquirer:<https://www.inquirer.com/politics/election/spl/pennsylvania-election-2020-investigation-republicans-audits-20201110.html>

As President Donald Trump continues to question the integrity of Pennsylvania’s election while repeating unverified claims of voter fraud, state Republicans are once again seeking greater powers to investigate the voting process.

Roughly two dozen House and Senate lawmakers on Tuesday called for the creation of an investigatory committee with subpoena power to conduct an immediate audit, saying they had fielded widespread doubts about the fairness of the Nov. 3 presidential election.

House Republicans championed a similar proposal<https://www.spotlightpa.org/news/2020/10/pa-election-integrity-committee-house-republicans-democrats-voting/> before the election, but abandoned it after Democrats raised concerns it would be weaponized to impound ballots, interrogate election officials, and delay the certification of Pennsylvania’s election results…

At the state Capitol, Rep. Dawn Keefer (R., York) said the assembled lawmakers’ offices had been “overwhelmed with calls and emails and other messages from constituents who are confused and outraged by the circumstances surrounding this election.”

When asked if she had evidence that fraud had been committed, Keefer said the lawmakers had “just gotten a lot of allegations, so I don’t know.”…

GOP leadership said Tuesday afternoon they had tasked the House State Government Committee to investigate the election. Interim chair, Rep. Seth Grove (R., York), said in a statement a review must take place “now, while all the evidence remains before us and the events leading up to our General Election are fresh in the minds of all participants.”

Speaking to reporters Tuesday, Cutler did not say he was concerned about voter fraud. Still, he blamed “the very fact that individuals can question the results” on the state’s “conflicting” guidance and the high court’s decisions.

But the very same election and ballots Republicans are questioning as part of the presidential race handed the party a decisive victory in other contests across Pennsylvania. The GOP is expected to expand its majorities in the state House and Senate, and win the state auditor general and treasurer’s races. Republicans have so far raised no concern about races they won.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

Watch Jason Abel, Justin Levitt, Myrna Perez and Me Discuss the Recent Election and Its Problems for ABA Seminar (Archived Video)<https://electionlawblog.org/?p=118458>
Posted on November 10, 2020 1:59 pm<https://electionlawblog.org/?p=118458> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here<https://www.youtube.com/watch?v=Id5lWWU62h4>:
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118458&title=Watch%20Jason%20Abel%2C%20Justin%20Levitt%2C%20Myrna%20Perez%20and%20Me%20Discuss%20the%20Recent%20Election%20and%20Its%20Problems%20for%20ABA%20Seminar%20(Archived%20Video)>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Bush v. Gore Veterans See Big Contrast to Current Legal Fight Over Election”<https://electionlawblog.org/?p=118456>
Posted on November 10, 2020 12:18 pm<https://electionlawblog.org/?p=118456> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/livecoverage/latest-updates-biden-trump-election-2020/card/niyb2aM6hX0Oq7J2DLbw>

Lawyers involved in the 2000 Bush v. Gore election fight said the legal battle forming over this year’s presidential election stands in contrast to what took place 20 years ago, when the outcome turned on several hundred votes in a single state.

That clash ultimately led to the U.S. Supreme Court’s intervention in Florida’s manual recount effort and Republican George W. Bush prevailing over Democrat Al Gore.

“We are nowhere close to the perfect storm that was 2000,” said Jack Young, who served as Mr. Gore’s recount attorney.

In 2000, the election hinged on 537 votes in Florida, a must-have state for either candidate to pass the threshold of 270 electoral votes. In 2020, President-elect Joe Biden is ahead by tens of thousands of votes in several contested battleground states, and President Trump would need significant legal wins in more than one state to alter the result.

Barry Richard, an election lawyer who served as a lead attorney for Mr. Bush in Florida, said the 2000 legal challenges revolved around ballot designs, antiquated voting equipment and inefficient state statutes.

“Both sides acknowledged the ballots were defective and that many had been rejected by ballot-reading machines that probably shouldn’t have been,” he said. The issue was how to correct it. Officials spent weeks reviewing each ballot by hand.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>

“YouTube Election Loophole Lets Some False Trump-Win Videos Spread”<https://electionlawblog.org/?p=118452>
Posted on November 10, 2020 11:00 am<https://electionlawblog.org/?p=118452> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg:<https://www.bloomberg.com/news/articles/2020-11-10/youtube-election-loophole-lets-some-false-trump-win-videos-spread>

On Monday, cable outlet One America News Network posted two videos to its YouTube account titled “Trump won.” The clips echoed several others telling viewers, falsely, that U.S. President Donald Trump was re-elected and that the vote was marred by fraud.

YouTube added a label noting that the Associated Press called the election for Joe Biden<https://www.bloomberg.com/news/articles/2020-11-07/joe-biden-wins-u-s-presidency-after-bitter-contest-with-trump>. But the world’s largest online video service didn’t block or remove the content. That approach differs from Twitter Inc., which has hidden conspiratorial election posts behind warnings.

A few months ago, YouTube released a detailed policy<https://support.google.com/youtube/answer/2801973?> prohibiting manipulated media and voter suppression, but left one gap: Expressing views on the election is OK. The result has been an onslaught of videos aiming to undermine the legitimacy of the election, according to online media and political researchers. Some of this material has spread on other social networks. And several clips, like the two OANN videos on Monday, ran advertisements, profiting from a Google policy that lets content framed as news reporting or talk shows cash in.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Trump Tweets Erode Trust in Elections Among Supporters, Study Finds”<https://electionlawblog.org/?p=118450>
Posted on November 10, 2020 10:57 am<https://electionlawblog.org/?p=118450> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/livecoverage/trump-biden-election-day-2020/card/Hb6kYrZyhGhaqgIoT5rH>

President Trump’s tweets questioning the U.S. election’s legitimacy are effective in shaping his supporters’ beliefs on that topic, while his tweets boosted his detractors’ confidence in elections, according to a study believed to be the first to estimate the effect of the president’s posts about voting.

The study, led by a Stanford University political science researcher alongside five researchers at other U.S. universities, measured the impact of Mr. Trump’s election rhetoric<https://s.wsj.net/public/resources/documents/democratic-norms.pdf> among roughly 2,000 respondents from both major political parties from Oct. 7 to Oct. 24. It took place in four waves where respondents were randomly assigned to view dozens of Mr. Trump’s tweets about election integrity, politics in general and other topics, including claims that lacked evidence.

Respondents at various points were asked questions, including if they believe elections are rigged, whether presidential candidates should accept election outcomes or whether they thought violence may be necessary to ensure proper vote counting. They were asked to answer, on a scale, questions including how frequently they thought stealing or ballot tampering occurs and whether they support military rule or a democratic political system. They were also asked to indicate their emotional responses after seeing tweets from Mr. Trump, who has more than 88 million followers.

The researchers then used statistical modeling to measure the effect of the tweets they saw for certain treatments, like trust and confidence in elections, support for democratic norms or support for political violence or democracy, said Katie Clayton, a political science researcher at Stanford University and the study’s lead author. They looked at whether there were changes over time by comparing the responses across different waves of the study.

The tweets sometimes reduced the belief among Trump supporters in a peaceful transfer of power, said Brendan Nyhan, a Dartmouth College political science professor and study co-author. They generally didn’t increase support for political violence, according to the study.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“U.S. Avoids Nightmare Election Scenarios as Institutions Prove More than Adequate”<https://electionlawblog.org/?p=118448>
Posted on November 10, 2020 10:52 am<https://electionlawblog.org/?p=118448> by Rick Hasen<https://electionlawblog.org/?author=3>

Larry Garber<https://medium.com/the-carter-center/u-s-avoids-nightmare-election-scenarios-as-institutions-prove-more-than-adequate-9863d8cc022> of the Carter Center:

To the relief of all believers in democracy, the United States election was conducted without any of the anticipated problems. More than 65 million people cast mail-in ballots and another 35 million voted early in person. Voter turnout during a raging pandemic was approximately 67 percent, the highest in more than 100 years.

Election officials learned well the lessons of a chaotic primary season and delivered an efficient Election Day. Very few irregularities or acts of intimidation were reported, and the counting process for in-person votes at individuals precincts was completed in an expeditious and transparent manner.

As expected, the counting on mail-in ballots required more time than usual. States that permitted the processing of mail-in ballots prior to Election Day reported their absentee returns soon after the polls closed. States that were not authorized to begin processing until Election Day — most notably Pennsylvania — were still counting mail-in ballots five days after the election. However, in all cases, the process was conducted in a transparent manner, with party observers present and livestreaming available for those with the interest and patience to watch.
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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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