[EL] more news and commentary 11/14/20

[Rick Hasen]

“Giuliani adds fuel to discredited theories about voting machines.”<https://electionlawblog.org/?p=118664>
Posted on November 14, 2020 2:52 pm<https://electionlawblog.org/?p=118664> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/11/14/us/politics/giuliani-adds-fuel-to-discredited-theories-about-voting-machines.html>:

Rudolph W. Giuliani, the president’s personal lawyer, continued on Saturday his effort to delegitimize votes cast through electronic voting machines, citing several conspiracies connected to the companies that make the machines and the software they run in a post on Twitter.

Looking to sow doubt about the vote count in multiple swing states that were recently called for President-elect Joseph R. Biden Jr., Mr. Giuliani hinted support for a discredited theory that one of the companies that manufactures the voting machines used in some states, Smartmatic, is controlled by the billionaire philanthropist George Soros.

“Look up SMARTMATIC and tweet me what you think?” Mr. Giuliani wrote. “It will all come out.”

Hours later, President Trump picked up a similar refrain, stating in a tweet that the election was “stolen” by “privately owned Radical Left company, Dominion,” without providing evidence or explaining why Dominion was distinct among the many other privately owned election system vendors that routinely administer elections in the United States.

Speculation that Mr. Soros has any influence over Smartmatic or its operations has been thoroughly debunked<https://www.nytimes.com/2020/11/03/technology/misinformation-election.html>, and he does not own the company. Mr. Soros’s distant connection to the company is through his association with Smartmatic’s chairman, Mark Malloch-Brown, who is on the board of Mr. Soros’s Open Society Foundation.

Smartmatic has been used in elections around the world. In Venezuela’s election, the software was manipulated to report a skewed tally. But the company said that it was an anomaly<https://www.google.com/amp/s/www.nytimes.com/2017/08/02/world/americas/venezuela-election-turnout.amp.html> and cited the lack of election monitors as part of the problem. In the United States, monitors from both parties are allowed to watch vote counting.

In the tweet, Mr. Giuliani appeared to backtrack on an earlier claim that Dominion Voting Systems, which makes the secure software used by voting machines, was involved in changing tallies, claiming that the company was in fact a “front” for Smartmatic, which he claimed was really doing the computing. Mr. Giuliani had previously said<https://www.nytimes.com/live/2020/2020-election-misinformation-distortions#no-dominion-voting-machines-did-not-delete-trump-votes> he was in contact with “whistle-blowers” from Dominion, and he claimed, despite overwhelming evidence to the contrary, that the company had altered vote tallies in battleground states that had elected Mr. Biden such as Michigan and Georgia.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Time is running out for President Trump’s election challenges”<https://electionlawblog.org/?p=118662>
Posted on November 14, 2020 2:48 pm<https://electionlawblog.org/?p=118662> by Rick Hasen<https://electionlawblog.org/?author=3>

Newsday reports.<https://www.newsday.com/news/nation/trump-biden-election-1.50065592>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump Lawyers Pressured to End Role in Election Challenges”<https://electionlawblog.org/?p=118660>
Posted on November 14, 2020 2:46 pm<https://electionlawblog.org/?p=118660> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/articles/trump-lawyers-pressured-to-end-role-in-election-challenges-11605371893?st=l9iarvk9biv6mg4>

Some law firms representing President Trump’s legal push to remain in the White House are withdrawing from cases or clarifying their roles amid pressure to end their involvement.

Ohio-based law firm Porter Wright Morris & Arthur LLP withdrew Thursday<https://www.wsj.com/livecoverage/latest-updates-biden-trump-election-2020/card/ubnCie3kE9v8yssLXxLi?mod=article_inline> from a Trump campaign federal lawsuit seeking to stop certification of election results in Pennsylvania. International law firm Jones Day has tried in recent days to publicly distance itself from any voter-fraud suits tied to the president. Another large firm withdrew from an Arizona case a day after filing it, and other lawyers working on Trump cases have faced onslaughts of online criticism.

The Associated Press has said President-elect Joe Biden is the winner of the election after it called enough states to give him a majority in the Electoral College. Mr. Trump hasn’t conceded and has told aides to keep fighting<https://www.wsj.com/livecoverage/latest-updates-biden-trump-election-2020/card/pjDqoMTacFOITVz31vLk?mod=article_inline>.

The Trump campaign has filed lawsuits in five battleground states, with a mix of local and national lawyers on their side. Judges have ruled against some of the claims<https://www.wsj.com/articles/michigan-judge-denies-conservative-group-s-request-to-delay-detroit-election-certification-11605295879?mod=article_inline>, and Trump lawyers have voluntarily dismissed others<https://www.wsj.com/articles/election-2020-trump-campaign-lawsuits-explained-11605205969?mod=article_inline>.

The Lincoln Project, a political-action committee run by Republicans critical of the president, launched a social-media campaign attacking Jones Day and Porter Wright. Twitter temporarily blocked the group because it posted contact information for Porter Wright attorneys and urged followers to “make them famous.” The account was restored once the tweet was deleted.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election law biz<https://electionlawblog.org/?cat=51>


“Christopher Krebs Hasn’t Been Fired, Yet”<https://electionlawblog.org/?p=118658>
Posted on November 14, 2020 2:43 pm<https://electionlawblog.org/?p=118658> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/11/13/us/politics/christopher-krebs-election-security-trump.html>

Christopher Krebs is a 43-year-old former Microsoft executive who had the unenviable government job of protecting the nation’s election machinery from manipulation by Russia or other foreign hackers. It turns out, though, that some of the most dangerous interference has come not from the Kremlin but from the White House, where the president called the election “rigged” before a single vote was cast.

Mr. Krebs’s organization, the Department of Homeland Security’s new Cybersecurity and Infrastructure Security Agency, has systematically shot down Mr. Trump’s false claims — that mail-in ballots would lead to extensive fraud and that voting machines were programmed to give votes to Joseph R. Biden Jr. — as part of its “rumor control” initiative<https://www.cisa.gov/rumorcontrol> to keep Americans from doubting the integrity of the election system.

To no one’s surprise, speculation swept through cybercircles in Washington on Thursday<https://www.reuters.com/article/us-usa-cyber-officials-exclusive-idUSKBN27S2YI> that Mr. Krebs was high on President Trump’s list of officials to be fired after his agency, known as CISA, released a statement<https://www.nytimes.com/2020/11/12/us/politics/election-officials-contradict-trump.html> from a government-led coordinating council saying that “there is no evidence” any voting systems were compromised and that the 2020 election “was the most secure in American history.” This occurred only hours after Mr. Trump had repeated a baseless report<https://twitter.com/realDonaldTrump/status/1326926226888544256> that a voting machine system had “deleted 2.7 million Trump votes nationwide.”

As of Friday night, Mr. Krebs was still employed, and still at his office, and shrugging it all off. As a father of five children, ages 2 through 10, he says he is used to living in chaos.

His department’s rumor control website, he said, was never devised with the president in mind. It was instead for “inoculating the American public” to make clear that even if there were fake websites created by the Russians and Iranians to stir up divisions before the election, “it wouldn’t mean that votes were affected, or tabulations were wrong.” A case in point: An Iranian effort to imitate the far-right Proud Boys was caught by American intelligence, and threatening emails the group had supposedly sent voters<https://www.nytimes.com/2020/10/21/us/politics/iran-russia-election-interference.html> were debunked.

If anyone believed the warnings about false information posted on the website were about the president, he said, that was their interpretation. “We’ll stand up for all our work,” he said.
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Posted in election administration<https://electionlawblog.org/?cat=18>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Boies and Olson WaPo oped: “We opposed each other in Bush v. Gore. Now we agree: Biden won.”<https://electionlawblog.org/?p=118656>
Posted on November 14, 2020 2:40 pm<https://electionlawblog.org/?p=118656> by Rick Hasen<https://electionlawblog.org/?author=3>

Oped:<https://www.washingtonpost.com/opinions/boies-olson-lawyers-bush-gore-2000-joe-biden-president/2020/11/14/1e113520-25ff-11eb-8672-c281c7a2c96e_story.html>

Twenty years ago, we represented the opposing sides in Bush v. Gore. We still don’t agree about how the Supreme Court ruled, but we completely agree that nothing in that case — or in the Supreme Court’s decision — supports the challenges now being thrown about in an attempt to undermine President-elect Joe Biden’s victory.

Yet, over the past week, we have heard repeated assertions that the outcome of this election is somehow in doubt, as it was in 2000.

It is not. Biden will be president. There are many areas of policy on which we disagree. But no matter how you voted in this election, that is the clear outcome. The nation’s laws and shared values dictate that Americans now unite to support democracy, national security, the public trust in institutions and the urgent work of the next administration.

It is also important for the public to understand why 2020 bears no resemblance to 2000.

The presidential-election controversies currently playing out in various parts of the country are not repeats of Bush v. Gore.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>


“GOP leaders in 4 states quash dubious Trump bid on electors”<https://electionlawblog.org/?p=118654>
Posted on November 14, 2020 2:38 pm<https://electionlawblog.org/?p=118654> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/article/election-2020-joe-biden-donald-trump-legislature-pennsylvania-b199b2debc87fbb20612a48835bc0dba>:

Republican leaders in four critical states won by President-elect Joe Biden say they won’t participate in a legally dubious scheme to flip their state’s electors to vote for President Donald Trump. Their comments effectively shut down a half-baked plot some Republicans floated as a last chance to keep Trump in the White House.

State GOP lawmakers in Arizona, Michigan, Pennsylvania and Wisconsin have all said they would not intervene in the selection of electors, who ultimately cast the votes that secure a candidate’s victory. Such a move would violate state law and a vote of the people, several noted.

“I do not see, short of finding some type of fraud — which I haven’t heard of anything — I don’t see us in any serious way addressing a change in electors,” said Rusty Bowers, Arizona’s Republican House speaker, who says he’s been inundated with emails pleading for the legislature to intervene. “They are mandated by statute to choose according to the vote of the people.”

The idea loosely involves GOP-controlled legislatures dismissing Biden’s popular vote wins in their states and opting to select Trump electors. While the endgame was unclear, it appeared to hinge on the expectation that a conservative-leaning Supreme Court would settle any dispute over the move.

Still, it has been promoted by Trump allies, including Florida Gov. Ron DeSantis, and is an example of misleading information and false claims fueling skepticism among Trump supporters about the integrity of the vote.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Project Veritas could face legal liability for postal worker’s ballot fraud allegations, experts say”<https://electionlawblog.org/?p=118652>
Posted on November 14, 2020 2:33 pm<https://electionlawblog.org/?p=118652> by Rick Hasen<https://electionlawblog.org/?author=3>

Roger Sollenberger for Salon<https://www.salon.com/2020/11/14/project-veritas-could-face-legal-liability-for-postal-workers-ballot-fraud-allegations-experts-say/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump Is Not Doing Well With His Election Lawsuits. Here’s a Rundown.”<https://electionlawblog.org/?p=118650>
Posted on November 14, 2020 2:21 pm<https://electionlawblog.org/?p=118650> by Rick Hasen<https://electionlawblog.org/?author=3>

Emily Bazelon<https://www.nytimes.com/2020/11/13/us/politics/trump-election-lawsuits.html> for the NYT.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Watch My Interview on Smerconish CNN Program on Why Trump’s Litigation Attempts Have Failed and Will Continue to Fail<https://electionlawblog.org/?p=118648>
Posted on November 14, 2020 1:58 pm<https://electionlawblog.org/?p=118648> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here<https://www.cnn.com/videos/tv/2020/11/14/how-does-trumps-refusal-to-concede-mpact-transfer-of-power.cnn>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Following Third Circuit Ruling, Trump Campaign Abandons Half Its Pennsylvania Federal District Court Case; Other Half Faces Tough Road<https://electionlawblog.org/?p=118646>
Posted on November 14, 2020 6:47 am<https://electionlawblog.org/?p=118646> by Rick Hasen<https://electionlawblog.org/?author=3>

As I expected<https://twitter.com/rickhasen/status/1327403756258959360>, yesterday’s Third Circuit ruling finding no standing for a challenge under the Elections and Elector Clauses has had an impact on the federal district court case brought by the Trump campaign in Pennsylvania: the campaign has abandoned <https://www.courtlistener.com/recap/gov.uscourts.pamd.127057/gov.uscourts.pamd.127057.124.0.pdf> those issues, leaving only its Bush v. Gore type equal protection claim.

The court may not even reach the merits of the equal protection case. See pages 7-9 of this DNC filing on the potential lack of standing <https://www.courtlistener.com/recap/gov.uscourts.pamd.127057/gov.uscourts.pamd.127057.105.0.pdf> in these cases. The claims also are brought too late<https://electionlawblog.org/?p=117751> and a federal court may abstain from getting involved.

Even if the court reached the merits, Ned Foley argues <https://twitter.com/Nedfoley/status/1327613396636864512?s=20> that disenfranchising voters is not the right remedy, as shown by the Franken v. Coleman race. And even if it were a cognizable equal protection claim, it does not appear to involve nearly enough ballots to change the results in Pennsylvania. And even if it changed the results in Pennsylvania that would not be enough to change the electoral college outcome.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump Loses String of Election Lawsuits, Leaving Few Vehicles to Fight His Defeat”<https://electionlawblog.org/?p=118644>
Posted on November 14, 2020 6:27 am<https://electionlawblog.org/?p=118644> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/11/13/us/politics/trump-loses-election-lawsuits.html>

President Trump suffered multiple legal setbacks in three key swing states on Friday, choking off many of his last-ditch efforts to use the courts to delay or block President-elect Joseph R. Biden Jr.’s victory.

In quick succession, Mr. Trump was handed defeats in Pennsylvania, Arizona and Michigan, where a state judge in Detroit rejected an unusual Republican attempt to halt the certification of the vote in Wayne County pending an audit of the count.

The legal losses came as Mr. Biden was declared the victor in Georgia<https://www.nytimes.com/live/2020/11/13/us/joe-biden-trump/biden-wins-georgia-and-trump-wins-north-carolina-the-final-states-to-be-called> and a day after an agency in the president’s own Department of Homeland Security flatly contradicted him<https://www.nytimes.com/2020/11/12/us/politics/election-officials-contradict-trump.html> by declaring that the election “was the most secure in American history” and that “there is no evidence” any voting systems malfunctioned.

On Friday, 16 federal prosecutors who had been assigned to monitor the election also directly debunked claims of widespread fraud, saying in a letter to Attorney General William P. Barr that there was no evidence of substantial irregularities.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘Purely outlandish stuff’: Trump’s legal machine grinds to a halt”<https://electionlawblog.org/?p=118642>
Posted on November 14, 2020 6:24 am<https://electionlawblog.org/?p=118642> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/11/13/trump-legal-team-cases-dropped-436492>

Michigan lawyer for Donald Trump’s campaign filed a case in the wrong court. Lawsuits in Arizona and Nevada were dropped. A Georgia challenge was quickly rejected for lack of evidence. His Pennsylvania legal team just threw in the towel.

The president’s legal machine — the one papering swing states with lawsuits and affidavits in support of Trump’s unsubstantiated claims of widespread fraud — is slowly grinding to a halt after suffering a slew of legal defeats and setbacks.

In the effort to stop Joe Biden’s victory from being certified, so many lawsuits have been filed in so many state and federal courts that no one has an exact number. But one thing is certain: the Trump campaign has an almost perfect record, having won only one case and lost at least a dozen<https://twitter.com/marceelias/status/1327327835883704325>.

Along the way, Trump lawyers have abruptly dropped core claims, been admonished in court for lack of candor and even been forced to admit they had no evidence of fraud, while their client inaccurately rails to the contrary on Twitter.

The sole Trump campaign victory came Thursday night: a Pennsylvania ruling that the secretary of state overstepped her authority by giving citizens extra days to fix signature mismatches on their mail in ballots. The ruling concerns a relatively small number of voters that are not even included in the election results for the state, where Biden leads by 62,000 votes with more than 98 percent of estimated votes reported.

On Friday, in another Pennsylvania case, the Trump cause was torpedoed yet again: an appeals court upheld the state’s method of handling post-Election Day absentee ballots, which could add more votes to Biden’s total.

“They’re throwing the kitchen sink against the wall to see what sticks — a mixed metaphor that’s deserving of this legal strategy. And ‘legal strategy’ should be in quotes,” said Ben Ginsberg, a veteran Republican election law attorney who headed the famed Florida recount team that ultimately led to George W. Bush becoming president.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Giuliani wrecks Trump campaign’s well-laid legal plans”<https://electionlawblog.org/?p=118640>
Posted on November 14, 2020 6:22 am<https://electionlawblog.org/?p=118640> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/11/14/giuliani-trump-legal-plans-436475>

Much of the focus, however, has been on crafting lawsuits in three states that zero in on specific allegations of voting irregularities. In Arizona, the campaign has drawn attention to issues with voting machines. In Michigan and Pennsylvania, it is complaining about not having adequate observation at voting sites.

The Pennsylvania suit also revolves around the idea that voters in Democratic-heavy Philadelphia had more of an opportunity to “cure” improperly cast ballots than those in the more conservative parts of the state. While the Arizona case was dropped Friday, the Michigan and Pennsylvania cases are pending.

Campaign officials describe it as an incremental approach aimed at chipping away at Biden’s leads and creating margins that are small enough to force recounts. While they concede their lawsuits are unlikely to succeed, they insist they’re not frivolous.

But their strategy has resulted in a clash with Giuliani, who has advocated for more of a damn-the-torpedoes approach. The former New York City mayor has been working independently of the Trump legal apparatus. He’s gone on Fox News and made allegations of widespread voter fraud. Early on, he ordered lawsuits to be filed without the consent of the campaign’s legal team.

Things came to a head during a meeting at the White House last Friday, one day before the Four Seasons Total Landscaping imbroglio. As the group batted around options before the president, Giuliani interjected and derided them as insufficiently aggressive. Some in the room were taken aback.

During a Thursday meeting at the White House that was attended by the president, Giuliani accused Trump aides of lying to Trump about his chances. Clark aggressively pushed back, and the two shouted at one another. Vice President Mike Pence was also present. The encounter was first reported by the Times.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s originalist judges should reject his lawsuits usurping states’ rights. The framers would.”<https://electionlawblog.org/?p=118638>
Posted on November 14, 2020 6:20 am<https://electionlawblog.org/?p=118638> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley for WaPo:<https://www.washingtonpost.com/opinions/2020/11/13/trumps-originalist-judges-should-reject-his-lawsuits-usurping-states-rights-framers-would/>

Conservatives believe in federalism, so they wouldn’t be happy about federal courts telling states how to count their votes — right? Conservatives believe in judicial restraint, so they wouldn’t be happy about federal judges stretching the law to stop states from counting votes — right?Follow the latest on Election 2020<https://www.washingtonpost.com/elections/?itid=lk_interstitial_hub_election>

Think again. President Trump’s campaign and its supporters have filed lawsuits<https://time.com/5908505/trump-lawsuits-biden-wins/> in federal courts in Michigan, Pennsylvania and Wisconsin that would appall the framers of the Constitution and should be rejected by the kind of originalist judges that Trump has helped install on the federal bench.

Indeed, Trump’s foray into federal court is asking for unprecedented intervention in a presidential election, a move that would contravene basic premises of how the resolution of a dispute over presidential ballots is designed to operate.
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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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