[EL] ELB News and Commentary 11/12/20

[Rick Hasen]

Rich Lowry: “The Completely Insane Electoral College Strategy”<https://electionlawblog.org/?p=118527>
Posted on November 11, 2020 8:16 pm<https://electionlawblog.org/?p=118527> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico oped<https://www.politico.com/news/2020/11/11/the-completely-insane-electoral-college-strategy-436156>:

Faced with this prospect, some allies of the president are advocating, or beginning to whisper about, Republican state legislatures taking matters into their own hands and sending slates of Trump electors to Congress regardless of the vote count.

This is a poisonous idea that stands out as radical and destructive, even in a year when we’ve been debating court-packing and defunding the police. The best that can be said for it is that it is almost certainly a nonstarter, which doesn’t mean that it won’t get more oxygen.

Donald Trump Jr. has pushed this option and Sen. Lindsey Graham, now bonded to Trump more firmly and completely than he was to the late Sen. John McCain, says “everything should be on the table.” A conservative in the Pennsylvania House, Daryl Metcalfe, has declared, “Our Legislature must be prepared to use all constitutional authority to right the wrong.”

We may be one presidential tweet away from this gambit becoming orthodoxy for much of the Republican Party….

State legislatures acting in the current context would be an extraordinary imposition. This scenario presumably involves the courts, first, rejecting Trump’s legal challenges because they lack the requisite evidence. So the vote counts in the key states would stay the same and there wouldn’t be compelling evidence of massive fraud, and yet the legislatures would act anyway.

The Republicans control the legislatures in all the key states, and they are subject to pressure from Trump and his supporters, but this would be asking them to defy the will of the people as expressed in a vote that would, by this time, have been litigated and perhaps recounted and audited.

One can only guess that the political reaction against this in the states in question would be thermonuclear. This must be one reason why the Republican leader of the state Senate in Pennsylvania, Jake Corman, has so far been steadfast in saying the Legislature is not going down this route.

Any such move would also be subject to litigation likely to go all the way to the Supreme Court. Even if the power of the legislatures is vast, there will be a dispute over whether they can ignore the results of elections that, prior to an unwelcome outcome, were supposed to determine the state’s electors.

On top of this, the legislatures appointing electors would trigger a historic donnybrook in Congress, which considers objections to electoral ballots under the Electoral Count Act of 1887. If Republicans aren’t united—and certainly a handful of senators, maybe more, would refuse sign up for this gambit—the party wouldn’t be able fend off objections to legislature-appointed Trump electors.

A more sensible path is to give the Trump team the time and space to pursue recounts and litigation. Then, if these efforts don’t produce reversals of vote counts or clear evidence of widespread fraud affecting tens of thousands of votes, to urge the president to fold his tent.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Twitter, Facebook face rocky future post-Donald Trump”<https://electionlawblog.org/?p=118525>
Posted on November 11, 2020 8:09 pm<https://electionlawblog.org/?p=118525> by Rick Hasen<https://electionlawblog.org/?author=3>

Roll Call:<https://www.rollcall.com/2020/11/10/twitter-facebook-face-rocky-future-post-donald-trump/>

Both Facebook and Twitter went into Election Day under enormous pressure from both parties, but in the end it was Trump and other Republicans whose posts were labeled most often for containing misleading or false information about the vote count and the integrity of the election.

Disinformation experts are skeptical that Twitter and Facebook’s labeling did much to quell the spread of Trump’s claims and conspiracy theories that spread using hashtags like #SharpieGate and #StopTheSteal throughout the week.

“We don’t really know what the impacts of the labels are,” Kate Starbird, a professor at the University of Washington who studies the flow of information online, told reporters last week during a briefing organized by the Election Integrity Partnership.

“At this point, no matter how fast they take action and no matter what labels they put on those messages, they’re getting out and they’re landing in a soft audience that is going to soak it up because it’s telling them what they want to hear,” Starbird added.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“Misinformation by a thousand cuts: Varied rigged election claims circulate”<https://electionlawblog.org/?p=118523>
Posted on November 11, 2020 8:05 pm<https://electionlawblog.org/?p=118523> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News:<https://www.nbcnews.com/tech/tech-news/misinformation-thousand-cuts-varied-rigged-election-claims-circulate-n1247476>

For Trump supporters intent on finding it, proof of the president’s claims that the 2020 election was “stolen” is everywhere.

For some, it’s in the videos: the one in which a Colorado man claiming to be a poll worker, dressed in a yellow vest, rips up Trump ballots (it was a TikTok prank<https://www.politifact.com/factchecks/2020/nov/10/blog-posting/no-video-doesnt-show-election-worker-destroying-tr/?src=ilaw>) or the trash bag of torn ballots found by a wedding party in an Oklahoma church (they were actually “spoiled ballots<https://twitter.com/OKelections/status/1325910987686502402>“) or the testimony from a Pennsylvania postal worker who claimed he was ordered to backdate ballots mailed after Election Day (he has since recanted<https://twitter.com/OversightDems/status/1326289047933816836> and also denied recanting<https://www.washingtontimes.com/news/2020/nov/10/richard-hopkins-erie-pennsylvania-postal-worker-de/>).

For others, the evidence of a so-called Democratic plot could be found in the numbers.

“Is it me, or do people not understand statistics?” asked one of the 1.3 million members in Nationwide Recount 2020, a private Facebook group, presenting an impassioned, if confusing, case for why mail-in ballots in swing states were favoring Biden.

“Benford’s Law,” a supporter commented, linking to an anonymous Twitter account that claimed in a series of tweets that a mathematical observation that the first digits of numbers are likely to be smaller somehow suggested widespread fraud by the Democrats.

Posts like these, discussing a dizzying array of false claims and conspiracy theories, have dominated social and ultraconservative media since the early morning after Election Day, when President Donald Trump prematurely and incorrectly declared himself the winner. As the votes continue to be counted and Joe Biden’s lead has increased (Biden was up by more than 5 million votes Wednesday), so has Trump’s insistence that the election was stolen from him.

And while no evidence of significant, widespread or even small-time voter fraud has been found, the years of groundwork laid by Trump and his supporters<https://www.nbcnews.com/tech/tech-news/trump-s-rigged-election-claims-online-megaphone-awaits-n1243309> have blossomed into a flood of misleading — and importantly, fractured — claims of a rigged election.

An analysis of post-election conversations in social media, broadcast, traditional and online media by the intelligence platform Zignal Labs reported more than 4.6 million mentions of voter fraud in the week after Election Day.

The conversation centers on more than 20 distinct narratives making up an election fraud disinformation campaign, according to an analysis provided to NBC News by the Election Integrity Partnership, a coalition of researchers studying misinformation and the vote.

“Instead of evidence, we’re assaulted with a plethora of claims seeking to undermine faith in the election, ranging from confusing to clearly fabricated,” said Joe Bak-Coleman, a postdoctoral fellow at the University of Washington who is tracking post-election disinformation as part of the Election Integrity Partnership. “Individually, none of these claims could stand up to a moment’s scrutiny, but collectively they’re deafening, urging the average citizen to give up and accept the ambiguity.”
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Pressure mounts on state Republicans as lawsuits challenging election results founder”<https://electionlawblog.org/?p=118521>
Posted on November 11, 2020 7:57 pm<https://electionlawblog.org/?p=118521> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/republican-pressure-states-election/2020/11/11/edd054fe-2441-11eb-952e-0c475972cfc0_story.html>

Pressure mounted on state and local officials in battleground states to accept claims of ballot-counting irregularities and voter fraud in the election despite a lack of evidence, as Republicans sought new ways to block certification of Joe Biden’s clear victory in the presidential race.

In Michigan, Republican lawyers lobbied the Wayne County canvassing board to consider evidence of alleged improprieties before certifying the vote. In Pennsylvania, GOP lawmakers were the target of social media campaigns demanding the appointment of electors who favor President Trump. And in Georgia, the Republican secretary of state defended the election and announced a hand audit of the results, despite calls by the state’s Republican senators for him to resign over alleged problems.ADhttps://0eb14ecbad31f2416426b5ebf649f8c5.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html

The efforts in these states — where Biden has won or is leading in the count<https://www.washingtonpost.com/elections/?itid=lk_inline_manual_7> — come as the Trump campaign struggles to amass genuine evidence of fraud that will pass muster in court. Republican lawsuits seeking to challenge the Nov. 3 election results so far have foundered, and affidavits cited as proof of election fraud in cities such as Detroit have failed to substantiate serious claims that votes were counted illegally.

While the Trump campaign’s lawsuits have so far been “summarily dismissed,” Michigan Attorney General Dana Nessel (D) said Wednesday that she is concerned the GOP may try to use baseless claims about irregularities or vote tampering to disrupt the certification of Biden’s win, depriving him of the state’s 16 electoral votes.

“It appears as though that is the strategy they are pursuing,” Nessel said on a call with reporters held by the nonpartisan Voter Protection Project. “We will do everything we can possibly do in the state of Michigan to ensure that that does not occur and that the slate of electors accurately reflects whoever received the most votes.”…

The state’s 83 county canvassing boards are required to complete their certification by Nov. 17. If a county cannot agree to certify results, it is required to send data to the state canvassing board, which meets Nov. 23 to consider certification.

If that board reaches an impasse, state law directs the legislature to act. While that is a long-shot possibility that has never happened, Democrats are now beginning to express worry about it.

The Senate majority leader and the speaker of the state House, both Republicans, declined requests for comment Wednesday. However, the speaker, Lee Chatfield, tweeted recently that “whoever gets the most votes will win Michigan! Period. End of story. Then we move on.”

A person familiar with the speaker’s thinking said that he and other Republicans do not want the legislature to decide the vote in Michigan.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s campaign is challenging mail and provisional ballots at record rates in Philly and its suburbs”<https://electionlawblog.org/?p=118519>
Posted on November 11, 2020 7:50 pm<https://electionlawblog.org/?p=118519> by Rick Hasen<https://electionlawblog.org/?author=3>

Philly Inquirer<https://www.inquirer.com/news/philadelphia-election-results-trump-legal-challenges-pennsylvania-mail-ballots-provisional-20201111.html>:

Even as President Donald Trump’s campaign is waging a well-publicized legal war on the broad rules governing the presidential election in Pennsylvania, its lawyers are engaging in lower-profile but no less important, county-by-county trench battles to disqualify individual votes in Philadelphia and its suburbs over technicalities.

Meanwhile, they are pursuing record numbers of challenges to “provisional” ballots, in some cases for grounds as small as the name of the county being misspelled.

Instead, their filings ask courts and county boards to disenfranchise potentially thousands of legitimate voters in Philadelphia and its suburbs over procedural errors made when filing their ballots.

There is no indication that the votes in question were specifically cast for Joe Biden — in fact, some voters contacted by The Inquirer said they voted for Trump. In the unlikely event that Republicans were to prevail in every ballot appeal they’ve brought before regional courts, the votes in question would still amount to only a fraction of Biden’s roughly 50,000-vote lead in the state as of Wednesday night.

And so far, these smaller-scale challenges have not been met warmly in court.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Remarkable Self-Sting: “Audio recording shows Pa. postal worker recanting ballot-tampering claim”<https://electionlawblog.org/?p=118517>
Posted on November 11, 2020 7:45 pm<https://electionlawblog.org/?p=118517> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/investigations/postal-worker-hopkins-ballot-pennsylvania/2020/11/11/c9b70eda-2470-11eb-8599-406466ad1b8e_story.html>:

In an interview this week with federal agents, a Pennsylvania postal worker walked back his allegation that a supervisor had tampered with mailed ballots, saying he had made “assumptions” based on overheard snippets of conversation, according to an audio recording of the interview posted online Wednesday by activists who have championed his cause.

The two-hour recording<https://www.youtube.com/watch?v=QkNkQ2nDQfc&feature=youtu.be> shows that Richard Hopkins recanted claims he had made in a sworn affidavit that top Republicans cited over the weekend as potential evidence of widespread election irregularities and fraud.

Hopkins told federal investigators on Monday his allegations were based on fragments of conversation among co-workers in a noisy mail facility in Erie, Pa., according to the recording.

When an agent from the U.S. Postal Service Office of Inspector General asked Hopkins if he stood by his sworn statement that a supervisor “was backdating ballots” mailed after Election Day, Hopkins answered: “At this point? No.”

He also agreed to sign a revised statement that undercut his earlier affidavit.

Those previous allegations had prompted Sen. Lindsey O. Graham (R-S.C.) to call for the Justice Department to investigate. The Trump campaign also cited them in a lawsuit seeking to delay the certification of election results in Pennsylvania, part of a broad effort to challenge the presidential election results.

Hopkins did not respond to messages seeking comment on Wednesday.

Hopkins surreptitiously recorded the interview on Monday, then revealed to the agents that he had done so at the end of the session, according to the recording. Project Veritas, an organization that initially aired Hopkins’s claims last week, released the recording on Wednesday, claiming that it showed he was coerced and pressured into signing a “watered down statement drafted by them using their words.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Detroit judge promises ruling Friday in election misconduct case”<https://electionlawblog.org/?p=118515>
Posted on November 11, 2020 7:39 pm<https://electionlawblog.org/?p=118515> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit Free Press:<https://www.freep.com/story/news/local/michigan/detroit/2020/11/11/lawsuit-alleging-election-fraud-detroit-judge-promises-opinion/6253125002/>

The attorney who brought a lawsuit<https://www.freep.com/story/news/politics/elections/2020/11/09/detroit-lawsuit-misconduct-elections/6218612002/> against Wayne County and Detroit election officials this week <https://www.greatlakesjc.org/press-release-election-fraud/> claimed at a hearing Wednesday that local election officials had failed to refute claims of election fraud leveled against them and stated his right to ask the court to intervene to block certification of the election results.

The lawsuit, filed by attorney  David Kallman, also asks the court to void the Nov. 3 election and order a new one.

Lawyers representing local election officials denied the claims of fraud and argued that the case, if allowed to proceed, would disenfranchise voters, give credence to election conspiracies and potentially prevent Michigan from being able to appoint electors in time to cast the state’s Electoral College votes.

Wayne County Circuit Chief Judge Timothy M. Kenny promised to issue his ruling Friday.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“What Is Trump’s Legal Strategy? Try to Block Certification of Biden Victory in States; Effort to get state Republicans to appoint pro-Trump Electoral College votes is a long shot, president’s advisers and election-law experts say”<https://electionlawblog.org/?p=118513>
Posted on November 11, 2020 6:28 pm<https://electionlawblog.org/?p=118513> by Rick Hasen<https://electionlawblog.org/?author=3>

WS<https://www.wsj.com/articles/what-is-trumps-legal-strategy-try-to-block-certification-of-biden-victory-in-states-11605138852>J:

President Trump’s campaign is pursuing a patchwork of legal attacks in key states that have been called for President-elect Joe Biden to mount a long-shot effort to try to prevent officials from certifying the results, advisers and lawyers involved said.

Trump advisers have grown more vocal in conversations with Mr. Trump in recent days that they don’t see a path to victory, even if his legal efforts meet some success, a White House official said, though some advisers have continued to tell the president he still has a shot. An official said Mr. Trump understands that the fight isn’t winnable but characterized his feelings as: “Let me have the fight.”

One potential strategy<https://www.wsj.com/articles/trump-campaign-launches-new-tactic-in-legal-fight-to-contest-election-results-11604969929?mod=article_inline> discussed by Mr. Trump’s legal team would be attempting to get court orders to delay vote certification in critical states, potentially positioning Republican-controlled state legislatures to appoint pro-Trump electors who would swing the Electoral College in his favor, according to people familiar with the discussions.

It isn’t known how seriously the campaign has considered this idea, one of the people said.

Many of the advisers and lawyers said they doubt the effort would succeed and say it is aimed largely at appeasing Mr. Trump, who believes the election was stolen from him and expects his legal team to keep fighting.

Some of Mr. Trump’s advisers and lawyers said there isn’t an overarching legal theory or coordination behind the campaign’s efforts. The legal battle likely will conclude with Mr. Trump claiming the election was rigged against him and that he fought the outcome, the White House official said.

“I don’t think there’s really a coherent strategy,” said one Republican official.

The Trump campaign hasn’t presented evidence of widespread fraud in any of its legal claims<https://www.wsj.com/articles/election-2020-trumps-lawsuits-are-getting-mixed-results-11604617463?mod=article_inline>.

Aside from the fact that trying to get state legislatures to submit alternative slates of electors is extremely likely<https://www.washingtonpost.com/opinions/2020/11/11/relax-biden-will-be-inaugurated-january-20/> to fail<https://www.theatlantic.com/ideas/archive/2020/11/trump-needs-three-consecutive-hail-mary-passes/617063/>, I’d add that trying to get states to choose electors for Trump and overturn the will of the voters is not just “a long shot:” it is profoundly anti democratic and would trigger national protests and unrest.

Reporters reporting on this story should not normalize something that would mark the end of American democracy.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


Hand Recount of Presidential Race in Georgia Proceeding under Uncertain Legal Authority<https://electionlawblog.org/?p=118510>
Posted on November 11, 2020 4:55 pm<https://electionlawblog.org/?p=118510> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC<https://www.ajc.com/politics/hand-recount-moves-ahead-under-interpretation-of-georgia-election-rules/A6TZPKBIMRCCTKBUZASTLLO4SE/>:

By ordering a statewide hand recount<https://www.ajc.com/politics/georgia-launches-statewide-hand-recount-of-presidential-race/7PWR53SU6BAWDBOFRBJAW6HERA/> of every ballot in the presidential race, Secretary of State Brad Raffensperger combined different parts of recount and audit procedures.

His decision will result in a time-consuming, labor-intensive<https://www.ajc.com/news/in-a-year-of-challenges-georgia-hand-recount-adds-one-more-for-local-election-officials/DCLM3JFHSZB6VJ53PO3JKKH3E4/> process that’s never been attempted before. Raffensperger said it will be worthwhile if it builds confidence in the election, where Joe Biden was leading Donald Trump by over 14,000 votes.

The count will be conducted under Georgia’s rules for election audits, but not as envisioned when those rules were drafted.

The audit rules call for a random sample of ballots to be pulled, and the text or bubbles to be reviewed and counted. The audit would have concluded when all ballots were counted and the odds that the full tabulation was incorrect was less than 10%, according to State Election Board rules.

But instead of pulling a smaller sample of ballots, Raffensperger plans to audit every ballot. The sample would have had to be over 1 million ballots, according to the secretary of state’s office, so Raffensperger decided a full count was justified given the closeness of the race.

“You actually have to do a full hand-by-hand recount of all ballots because the margin is so close right now,” Raffensperger said.

Georgia’s recount rules wouldn’t have allowed a hand recount.

A State Election Board rule passed this year, which Raffensperger supported, required only scanned recounts<https://www.ajc.com/news/state--regional-govt--politics/hand-recounts-georgia-paper-ballots-barred-election-proposal/7uQrB3SjgW4ylcVOpb4hHM/>.

Election integrity advocates protested<https://www.ajc.com/news/state--regional-govt--politics/hand-recounts-georgia-paper-ballots-barred-election-proposal/7uQrB3SjgW4ylcVOpb4hHM/>, but state election officials said scans were faster and more accurate. The audit process was envisioned as a way to check the accuracy of tabulations by looking at the ballots themselves instead of relying on computers.

Georgia rules and laws don’t authorize the secretary of state to leap from an audit to a full hand-based recount, said Bryan Sells, an election law attorney.

“If the goal here is clarity, the secretary of state should not step into murky legal territory,” Sells said. “The secretary of state should not be making any questionable calls here to give either side the opportunity to question the fairness of what he’s doing.”

The secretary of state’s office said an audit of the full ballot count is merited and allowed. State law permits the secretary of state to set a risk limit “not greater than 10%,” which could be read to mean Raffensperger could set the limit at a lower level that would mandate a full recount….

The recount was scheduled to begin Thursday and Friday in Georgia’s 159 counties, and they face a Nov. 20 deadline to finish it. That’s the state’s election certification deadline, which can only be extended “for just cause” by a superior court judge’s order, according to state law.

Even then, another recount<https://www.ajc.com/politics/presidential-race-in-georgia-likely-heading-to-a-recount/CPLPIT67CBGC5EWEWAAKEOGLJ4/> is possible.
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Posted in election administration<https://electionlawblog.org/?cat=18>, recounts<https://electionlawblog.org/?cat=50>


Federal Court in Pennsylvania Gives Trump Campaign Until 5 PM Thursday to File Any Motion for an Injunction Related to Its Meandering Election Complaint<https://electionlawblog.org/?p=118508>
Posted on November 11, 2020 4:37 pm<https://electionlawblog.org/?p=118508> by Rick Hasen<https://electionlawblog.org/?author=3>

Briefing schedule<https://www.courtlistener.com/recap/gov.uscourts.pamd.127057/gov.uscourts.pamd.127057.35.0.pdf>.

I discussed the problems with the Trump complaint here<https://electionlawblog.org/?p=118430> and here<https://www.theatlantic.com/ideas/archive/2020/11/trump-needs-three-consecutive-hail-mary-passes/617063/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


AP: “Few legal wins so far as Trump team hunts for proof of voter fraud: ‘From the inside looking out, it feels all very deranged’”<https://electionlawblog.org/?p=118506>
Posted on November 11, 2020 4:27 pm<https://electionlawblog.org/?p=118506> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.baltimoresun.com/news/nation-world/ct-trump-voter-fraud-claims-20201112-lk5rbgrivbg6jkcj7nfw6mhym4-story.html>

Some of the suits filed on Trump’s behalf appear to be hastily thrown together, with spelling errors (“ballet” for “ballot”), procedural mistakes and little to back up their claims. Judges have been skeptical.

In Michigan, Judge Cynthia Stephens dismissed one filing as “inadmissible hearsay within hearsay.” When Trump’s lawyers appealed, the next court kicked the filing back as “defective.”

The campaign has so far scored just one small victory, allowing their observers to stand a little closer to election workers processing the mail-in ballots in Philadelphia. But the litigation keeps coming, usually centered on accusations from partisan poll watchers, who have no auditing role in the election, that something untoward may have happened, without evidence to back it up.

Senate Majority Leader Mitch McConnell, R-Ky., insists the president is “100% within his rights” to look into fraud allegations and pursue his legal options. Attorney General William Barr has authorized the Justice Department to investigate “clear and apparently-credible allegations of irregularities.”

Either way, experts doubt the suits can reverse the outcome in a single state, let alone the election. Trump aides and allies have privately admitted as much, suggesting the challenges are designed more to stoke his base.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Few Courts Have Intervened in Elections in Ways Sought by Trump Campaign”<https://electionlawblog.org/?p=118504>
Posted on November 11, 2020 4:24 pm<https://electionlawblog.org/?p=118504> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ<https://www.wsj.com/articles/few-courts-have-intervened-in-elections-in-ways-sought-by-trump-campaign-11605126759>:

Few courts have considered the types of requests being made by the Trump campaign<https://www.wsj.com/articles/trump-campaign-launches-new-tactic-in-legal-fight-to-contest-election-results-11604969929?mod=article_inline>, such as keeping a state from certifying its election based on allegations that Republican poll observers lacked sufficient access to ballot counting.

President Trump’s lawyers in federal court this week asked a judge to take that unprecedented step, arguing that Pennsylvania had inadequate safeguards to detect voting fraud. The campaign is pursuing similar claims in Michigan, where Republicans also are alleging misconduct in the election process.

But such relief has rarely, if ever, been awarded to a campaign running behind in an election.

“I don’t think there’s any precedent for this,” said Daniel Tokaji, an election-law expert and dean of University of Wisconsin Law School, referring to the Pennsylvania case. “The lawsuit is a Hail Mary pass.”

The Trump campaign’s suit in Pennsylvania alleges counties controlled by Democrats processed ballots in unmonitored back rooms or in larger barricaded spaces with poll observers kept at a distance.

State election officials have said they followed all laws and have declined to comment on the litigation. Republicans haven’t offered evidence of fraud in Pennsylvania.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“In poll watcher affidavits, Trump campaign offers no evidence of fraud in Detroit ballot-counting”<https://electionlawblog.org/?p=118502>
Posted on November 11, 2020 4:21 pm<https://electionlawblog.org/?p=118502> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/michigan--poll-watcher-affidavits/2020/11/11/4d073d7a-2447-11eb-a688-5298ad5d580a_story.html>:

Inside Detroit’s absentee-ballot-counting center, one Republican poll watcher complained that workers were wearing Black Lives Matter gear. She thought one of them — a “man of intimidating size” — had followed her too closely.

Another Republican poll watcher complained about the public address system. Workers were using it to make announcements. It was loud. “This was very distracting to those of us trying to concentrate,” he said.

A third poll watcher noticed that when absentee ballots came in from military personnel, many showed votes for Democrats. He found that odd.

“I can estimate that at least 80% of military ballots I saw were straight ticket Democrat or simply had Joe Biden’s name filled in on them,” the man wrote. “I had always been told that military people tended to be conservative, so this stuck out to me.”

On Wednesday, President Trump’s campaign asked a federal judge to take a drastic step: block the state of Michigan from certifying the results of its presidential election. President-elect Joe Biden now leads Trump by about 148,000 votes there.

To back up that lawsuit, Trump’s campaign had promised “shocking” evidence of misconduct.

Instead, the campaign produced 238 pages of affidavits from Republican poll watchers across Michigan containing no evidence of significant fraud but rather allegations about ballot-counting procedures that state workers have already debunked — and in some cases, complaints about rude behavior or unpleasant looks from poll workers or Democratic poll watchers.

“I felt intimidated by union people who were staring at me,” one GOP poll watcher wrote.

The suit in Michigan is emblematic of the problem facing Trump as he seeks to reverse a sizable electoral defeat through long-shot lawsuits<https://www.washingtonpost.com/politics/trump-election-irregularities-claims/2020/11/08/8f704e6c-2141-11eb-ba21-f2f001f0554b_story.html?itid=lk_inline_manual_13>. To work in court, this strategy would probably require Trump to provide evidence of wide-scale voter fraud across multiple states.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Karl Rove in the WSJ: This Election Result Will Not Be Overturned<https://electionlawblog.org/?p=118500>
Posted on November 11, 2020 4:08 pm<https://electionlawblog.org/?p=118500> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ column:<https://www.wsj.com/articles/this-election-result-wont-be-overturned-11605134335>

To win, Mr. Trump must prove systemic fraud, with illegal votes in the tens of thousands. There is no evidence of that so far. Unless some emerges quickly, the president’s chances in court will decline precipitously when states start certifying results, as Georgia will on Nov. 20, followed by Pennsylvania and Michigan on Nov. 23, Arizona on Nov. 30, and Wisconsin and Nevada on Dec. 1. By seating one candidate’s electors, these certifications will raise the legal bar to overturn state results and make it even more difficult for Mr. Trump to prevail before the Electoral College meets Dec. 14.

TV networks showed jubilant crowds in major cities celebrating Mr. Biden’s victory; they didn’t show the nearly equal number of people who mourned Mr. Trump’s defeat. U.S. politics remains polarized and venomous. Closing out this election will be a hard but necessary step toward restoring some unity and political equilibrium. Once his days in court are over, the president should do his part to unite the country by leading a peaceful transition and letting grievances go.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Six States Have Now Officially Certified Their Votes<https://electionlawblog.org/?p=118498>
Posted on November 11, 2020 2:20 pm<https://electionlawblog.org/?p=118498> by Richard Pildes<https://electionlawblog.org/?author=7>

See here<https://cookpolitical.com/2020-national-popular-vote-tracker> for a running tally.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Relax. Biden will be sworn in Jan. 20.”<https://electionlawblog.org/?p=118496>
Posted on November 11, 2020 1:19 pm<https://electionlawblog.org/?p=118496> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley in WaPo:<https://www.washingtonpost.com/opinions/2020/11/11/relax-biden-will-be-inaugurated-january-20/>

What if renegade judges do something crazy, or what if the litigation just delays certification of the popular vote long enough to prevent appointment of pro-Biden electors based on the popular vote? We can hypothesize such nightmarish scenarios, but also adequate antidotes: The Biden electors simply need to meet on Monday, Dec. 14, and send their electoral votes to Congress….

That’s because Biden has passed a magic number — not 270, but 50: that is, 50 votes in the Senate to officially declare him the winner when Congress meets in a special joint session on Jan. 6.

The number is 50, not 51, because one of the two Georgia Senate seats will be empty on Jan. 6 — the runoff to fill that seat is being held just the day before. The other Georgia Senate seat, although also in a runoff, involves a special election for an unexpired term; as a result, Sen. Kelly Loeffler will still be a sitting senator on Jan. 6.

So, Biden needs 50 of 99 Senate votes for any electoral college question that might arise. Voting that day will be 48 Democrats and 51 Republicans.

That Republican majority shouldn’t be a problem. Four GOP senators have congratulated Biden as president-elect: Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah) and Ben Sasse (Neb.). Even if Sen. Kamala D. Harris (Calif.) were to recuse herself to avoid voting in favor of her own election as vice president, Biden would have a vote to spare.ADhttps://9122ffb8699c9718a1621ae4d9664253.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html

Don’t forget also: If for some strange reason the GOP moderates go wobbly, Michigan, Nevada, Pennsylvania and Wisconsin will count for Biden because the governors of those states will have certified Biden’s electoral votes. Federal law requires this gubernatorial certification to prevail if the House and Senate split. With these states, Biden is still above 270.

There is one remaining nightmare scenario: that Vice President Pence, as presiding officer in the Jan. 6 joint session, will attempt to override the result required by the Electoral College Act<https://www.law.cornell.edu/uscode/text/3/15>. This is unthinkable; it would be the definition of despotism for Pence to put himself, and Trump, back in power when both the Senate and House recognize Biden’s lawful claim.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Top Republican says an investigation of Wisconsin’s election is unlikely to take away Biden’s win in the state”<https://electionlawblog.org/?p=118494>
Posted on November 11, 2020 11:46 am<https://electionlawblog.org/?p=118494> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel<https://www.jsonline.com/story/news/politics/elections/2020/11/11/wisconsin-republicans-say-election-probe-likely-wont-change-results/6248225002/>:

Wisconsin lawmakers plan to issue their first subpoenas in decades as part of an investigation into the Nov. 3 election, even as the top Republican in the Assembly acknowledges the probe is unlikely to change the outcome.

The move comes as supporters of President Donald Trump grapple with a narrow loss in a state they won four years ago by a sliver.

As in other states, Wisconsin Republicans are alleging voter fraud but so far are not providing evidence of widespread problems<https://www.jsonline.com/story/news/politics/elections/2020/11/10/wisconsin-republicans-seek-issues-they-can-raise-recount/6225417002/> that would take away President-elect Joe Biden’s victory.

The state Senate and Assembly’s committees on elections plan to hold a joint hearing next week on how the election was conducted, said Rep. Ron Tusler, a Harrison Republican and the chairman of the Assembly committee.

He said he would call Meagan Wolfe, the director of the state Elections Commission, to testify and plans to subpoena municipal clerks or others to force them to come before the committees.

It has likely been more than 50 years since Wisconsin lawmakers have issued subpoenas, according to nonpartisan researchers for the Legislature.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Can Trump actually stage a coup and stay in office for a second term?”<https://electionlawblog.org/?p=118492>
Posted on November 11, 2020 11:05 am<https://electionlawblog.org/?p=118492> by Richard Pildes<https://electionlawblog.org/?author=7>

From the Guardian<https://www.theguardian.com/us-news/2020/nov/11/can-donald-trump-stay-in-office-second-term-president-coup>:

There is a long-shot legal theory, floated by Republicans<https://www.theguardian.com/us-news/2020/sep/25/trump-attack-election-electors-republicans> before the election, that Republican-friendly legislatures in places such as Michigan, Wisconsin, and Pennsylvania could ignore the popular vote in their states and appoint their own electors. Federal law allows legislatures to do this if states have “failed to make a choice<https://www.theatlantic.com/ideas/archive/2020/11/trump-needs-three-consecutive-hail-mary-passes/617063/>” by the day the electoral college meets. But there is no evidence of systemic fraud of wrongdoing in any state and Biden’s commanding margins in these places make it clear that the states have in fact made a choice.

“If the country continues to follow the rule of law, I see no plausible constitutional path forward for Trump to remain as president barring new evidence of some massive failure of the election system in multiple states,” Richard Hasen, a law professor at the University of California, Irvine, who specializes in elections, wrote in an email. “It would be a naked, antidemocratic power grab to try to use state legislatures to get around the voters’ choice and I don’t expect it to happen.”

For lawmakers in a single state to choose to override the clear will of its voters this way would be extraordinary and probably cause extreme outcry. For Trump to win the electoral college, several states would have to take this extraordinary step, a move that would cause extreme backlash and a real crisis of democracy throughout the country.

“There’s a strange fascination with various imagined dark scenarios, perhaps involving renegade state legislatures, but this is more dystopian fiction than anything likely to happen,” said Richard Pildes, a law professor at New York University. “The irony, or tragedy, is that we managed to conduct an extremely smooth election, with record turnout, under exceptionally difficult circumstances – and yet, a significant portion of the president’s supporters are now convinced that the process was flawed.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump lawyers suffer embarrassing rebukes from judges over voter fraud claims”<https://electionlawblog.org/?p=118490>
Posted on November 11, 2020 9:30 am<https://electionlawblog.org/?p=118490> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/2020/11/11/trump-lawyers-suffer-embarrassing-rebukes-judges-over-voter-fraud-claims/>:

The Trump campaign also sought to temporarily stop counting some ballots in Detroit. It cited a GOP poll watcher who had said she had been told by an unidentified person that late mail ballots were being predated<https://www.freep.com/story/news/politics/elections/2020/11/05/poll-watcher-challenger-ballot-counting-detroit-tcf-center/6172210002/> to before Election Day, so they would be considered valid.

The judge repeatedly asserted this was hearsay, but Trump campaign lawyer Thor Hearne sought to argue that it wasn’t — despite it having been someone who said they heard about something they weren’t personally involved in. He pointed to a vague note the poll watcher produced — which said “entered receive date as 11/2/20 on 11/4/20” — as evidence:STEPHENS: So I want to make sure I understand you. The affiant is not the person who had knowledge of this. Is that correct?HEARNE: The affiant had direct firsthand knowledge of the communication with the elections inspector and the document they provided them.STEPHENS: Okay, which is generally known as hearsay, right?HEARNE: I would not think that’s hearsay, Your Honor. That’s firsthand personal knowledge by the affiant of what she physically observed. And we included an exhibit which is a physical copy of the note that she was provided.

The two later returned to the point, after Stephens reviewed the note, and Stephens echoed Judge Diamond’s exasperation:STEPHENS: I’m still trying to understand why this isn’t hearsay.HEARNE: Well, it’s, it, I –STEPHENS: I absolutely understand what the affiant says she heard someone say to her. But the truth of the matter … that you’re going for was that there was an illegal act occurring. Because other than that I don’t know what its relevancy is.HEARNE: Right. I would say, Your Honor, in terms of the hearsay point, this is a firsthand factual statement made by Ms. Conoron, and she has made that statement based on her own firsthand physical evidence and knowledge –STEPHENS: “I heard somebody else say something.” Tell me why that’s not hearsay. Come on, now.HEARNE: Well it’s a firsthand statement of her physical –STEPHENS: It’s an out-of-court statement offered where the truth of the matter is [at-issue], right?

In a later written decision, Stephens slammed the argument as “inadmissible hearsay within hearsay<https://lawandcrime.com/2020-election/come-on-now-michigan-judge-scoffs-at-and-tosses-trump-campaign-lawsuit-backed-by-hearsay-evidence/>.” And after the campaign appealed, Stephens rebuked it Monday for not including required documentation.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Georgia launches statewide hand recount of presidential race”<https://electionlawblog.org/?p=118488>
Posted on November 11, 2020 8:46 am<https://electionlawblog.org/?p=118488> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/politics/georgia-launches-statewide-hand-recount-of-presidential-race/7PWR53SU6BAWDBOFRBJAW6HERA/>

Georgia Secretary of State Brad Raffensperger on Wednesday ordered a recount of all 5 million ballots cast in the presidential election to check initial results showing President-elect Joe Biden won by 14,000 votes.

Raffensperger, a Republican, said the recount will be conducted by hand in each of Georgia’s 159 counties, and it must be completed by a Nov. 20 deadline to finalize election results. Poll workers will review the printed text on ballots and then sort them into piles to check the accuracy of results.

The recount will be combined with a previously planned audit of paper ballots. But instead of auditing a relatively small sample of ballots, the review will encompass all ballots.

The decision to start a hand recount came after the Trump campaign requested it Tuesday. Raffensperger said he wasn’t influenced by the Trump campaign.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Most Expensive Election Ever”<https://electionlawblog.org/?p=118486>
Posted on November 11, 2020 8:41 am<https://electionlawblog.org/?p=118486> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy<https://www.brennancenter.org/our-work/analysis-opinion/most-expensive-election-ever> for the Brennan Center.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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Irvine, CA 92697-8000
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>

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