[EL] ELB News and Commentary 11/16/20

[Rick Hasen]

Brendan Nyhan Talks to NPR About the Erosion of Democratic Norms in the 2020 Election Season<https://electionlawblog.org/?p=118687>
Posted on November 15, 2020 7:52 pm<https://electionlawblog.org/?p=118687> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen here.<https://www.npr.org/2020/11/15/935112333/how-the-2020-election-has-changed-trust-in-u-s-democracy>

NYHAN: That’s right. I think coup is the wrong way to think about this. We’re not seeing an attempted military takeover. What we’re seeing instead is a violation of the norms of democracy that we depend on to make the peaceful transfer of power possible. And as those norms get called into question, we start to see more of what political scientists call democratic erosion, where a system of government remains a democracy, but the norms and values that make democracy work start to be called into question.

Now, Joe Biden will almost certainly be sworn in on January 20, but a lot of damage could still be done in the meantime. And I think people should avoid thinking that the question is just, will Trump leave, or won’t he? He will leave, but the damage he could leave us is really significant.

GARCIA-NAVARRO: Yeah. We’ve seen this happen in other countries. As you say, democracy is fragile. There’s always been this sense that the U.S. is exceptional immune somehow. You are most worried in particular about how Republican leaders are promoting and supporting the president’s actions. Why?

NYHAN: Well, we’ve seen throughout the Trump administration that too many Republicans are willing to acquiesce to his false claims. What we’re seeing now, though, is different. What the president is doing challenges the very basis for democracy.

And we’re not just seeing Republicans stand idly by on the sidelines. We’re seeing many leading Republicans endorsing or at least suggesting there’s something to these attacks on our electoral system. And that’s very dangerous because the party system is the engine of democracy. What happens to the Republican Party will shape our politics long after Donald Trump leaves. And if his worst norm violations aren’t just something Republicans pretend not to hear but are instead something that they emulate and amplify, we’re in really big trouble.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How a post-election crisis was manufactured in Pennsylvania”<https://electionlawblog.org/?p=118685>
Posted on November 15, 2020 7:49 pm<https://electionlawblog.org/?p=118685> by Rick Hasen<https://electionlawblog.org/?author=3>

Marshall Cohen<https://www.cnn.com/2020/11/14/politics/pennsylvania-election-crisis/index.html> for CNN:

It was the nightmare scenario everyone saw coming: a nail-biter presidential election that was too close to call on election night, with the entire world forced to patiently wait on slow results from Pennsylvania as it sifted through millions of mail-in ballots.

President Donald Trump held Florida and Ohio, which quickly reported their mail-in results on election night. By the next afternoon, Democratic nominee Joe Biden had flipped Michigan and Wisconsin. But for four arduous days, the outcome of the 2020 election lingered in purgatory<https://www.cnn.com/2020/11/04/politics/mail-in-ballots-pennsylvania-georgia-michigan-wisconsin/index.html>.

All eyes fell on Pennsylvania, with millions of still-uncounted votes. The delay was largely caused by Republican state lawmakers who defied local officials and nonpartisan experts, and refused to let counties process mail ballots before Election Day, as is allowed in other states.So the election went into overtime. As the days crept by, Trump’s massive election night lead of 700,000 votes slowly disappeared as Pennsylvania’s 67 counties churned through their mail-in ballots, revealing a narrow win for Biden.

This predictable shift <https://www.cnn.com/2020/10/30/politics/red-blue-mirage-election-results/index.html> gave rise to a bevy of conspiracy theories, disinformation and baseless accusations of voter fraud, stoked chiefly by the President…

Rick Pildes, a CNN contributor who’s a law professor at New York University, recently wrote <https://electionlawblog.org/?p=118363> that the federalism at the heart of American elections has become more of a liability than a strength. He said federal voting legislation is needed to “adapt to the reality of the political culture within which we now exist,” which is a culture overrun by partisanship, distrust and disinformation.

At least two Republicans, Sens. Pat Toomey <https://www.foxnews.com/politics/gop-senator-calls-on-trump-to-cooperate-with-biden-transition> of Pennsylvania and Josh Hawley <https://www.hawley.senate.gov/sites/default/files/2020-11/Protect-Election-Integrity-Act-of-2020.pdf> of Missouri, now say states should be allowed to process absentee ballots much earlier. Experts are hoping that with a Biden presidency and a likely GOP-run Senate, there could be room for compromise.

“We face a vicious cycle,” said Larry Diamond, a democracy expert at the conservative Hoover Institution. “We need to reform and improve our voting procedures precisely because distrust and disinformation are so rampant. But it’s hard to get agreement on these reforms because of the partisan polarization that distrust, disinformation and irresponsible politics are fomenting.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Stop the Steal’s massive disinformation campaign connected to Roger Stone”<https://electionlawblog.org/?p=118683>
Posted on November 15, 2020 7:43 pm<https://electionlawblog.org/?p=118683> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2020/11/13/business/stop-the-steal-disinformation-campaign-invs/index.html>

It is an internet battle cry: Stop the Steal has swept across inboxes, Facebook pages and Twitter like an out-of-control virus, spreading misinformation and violent rhetoric — and spilling into real life, like the protest planned for DC this weekend.

But while Stop the Steal may sound like a new 2020 political slogan to many, it did not emerge organically over widespread concerns about voting fraud in President Donald Trump’s race against Joe Biden. It has been in the works for years.

Its origin traces to Roger Stone, a veteran Republican operative and self-described “dirty trickster” whose 40-month prison sentence for seven felonies was cut short by Trump’s commutation in July.

Stone’s political action committee launched a “Stop the Steal” website in 2016 to fundraise ahead of that election, asking for $10,000 donations by saying, “If this election is close, THEY WILL STEAL IT.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


NYT Traces Trump Voter Fraud Charges Over Time<https://electionlawblog.org/?p=118681>
Posted on November 15, 2020 7:40 pm<https://electionlawblog.org/?p=118681> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/11/15/us/politics/trump-voter-fraud-claims.html>

Like similar episodes in Las Vegas, Milwaukee, Philadelphia and Pittsburgh, the scene in Detroit was the culmination of a yearslong strategy by Mr. Trump to use the power of the executive branch, an army of lawyers, the echo chamber of conservative news media and the obedience of fellow Republicans to try out his most audacious exercise in bending reality: to turn losing into winning.

Obscured by the postelection noise over the president’s efforts to falsely portray the election system as “rigged” against him has been how much Mr. Trump and his allies did ahead of time to promote a baseless conspiracy devised to appeal to his most passionate supporters, providing him with the opportunity to make his historically anomalous bid to cling to power in the face of defeat.

That bid is now in its last throes. Judges are dismissing the president’s lawsuits<https://www.nytimes.com/2020/11/13/us/politics/trump-election-lawsuits.html>, as various bits of supposed evidence — an alleged box of illegal ballots<https://www.washingtonpost.com/technology/2020/11/05/video-claiming-detroit-ballot-fraud-debunked/> that was in fact a case containing camera equipment and “dead voters<https://www.11alive.com/article/news/politics/elections/2-georgians-accused-of-being-dead-and-voting-are-alive/85-88dff3c1-8e78-4ac2-ae9c-96838e5b02a8>” who are alive — unravel. And yet Mr. Trump has still not given up on seeding doubt about the election’s integrity as he seeks to stain Mr. Biden’s clear victory — by more than 5.5 million votes and also in the Electoral College<https://www.nytimes.com/interactive/2020/11/03/us/elections/results-president.html> — with false insinuations of illegitimacy. On Sunday alone, he posted more than two dozen election-related tweets<https://www.nytimes.com/2020/11/15/us/politics/trump-biden-election.html>, seeming to briefly acknowledge Mr. Biden’s victory before declaring, “I concede NOTHING!<https://twitter.com/realDonaldTrump/status/1327979630477922304?s=20>”

The roots of Mr. Trump’s approach date to before his election in 2016, and he advanced his plans throughout his term. But his strategy for casting doubt on the outcome of the 2020 campaign took shape in earnest when the coronavirus pandemic upended normal life and led states to promote voting by mail.

From the start, the president saw mail-in ballots as a political threat that would appeal more to Democrats than to his followers. And so he and his allies sought to block moves to make absentee voting easier and to slow the counting of mail ballots<https://www.nytimes.com/interactive/2020/11/02/magazine/vote-mail-postal-service.html>. This allowed Mr. Trump to do two things: claim an early victory on election night and paint ballots that were counted later for his opponent as fraudulent.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Georgia Recount Yields Few Changes in Vote Totals, Democrats Say”<https://electionlawblog.org/?p=118678>
Posted on November 15, 2020 7:30 pm<https://electionlawblog.org/?p=118678> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg:<https://www.bloomberg.com/news/articles/2020-11-15/georgia-recount-yields-few-changes-in-vote-totals-democrats-say>

Georgia’s hand audit of ballots cast in the presidential election is proceeding rapidly with little change in the results so far, according to lawyers working for President-elect Joe Biden’s campaign.

Some 48 of the state’s 159 counties have finished their examination of the ballots with either no change or minor shifts — differences of fewer than five votes in some instances, they said. Four counties that have finished their retallies reported having no changes.
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Posted in recounts<https://electionlawblog.org/?cat=50>


“Trump campaign jettisons major parts of its legal challenge against Pennsylvania’s election results”<https://electionlawblog.org/?p=118676>
Posted on November 15, 2020 7:20 pm<https://electionlawblog.org/?p=118676> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/trump-lawsuit-pennsylvania/2020/11/15/4aab8048-279b-11eb-9b14-ad872157ebc9_story.html>

President Trump’s campaign on Sunday scrapped a major part of its federal lawsuit <https://cdn.donaldjtrump.com/public-files/press_assets/2020-11-09-complaint-as-filed.pdf> challenging the election results in Pennsylvania.

Trump’s attorneys filed a revised version of the lawsuit, removing allegations that election officials violated the Trump campaign’s constitutional rights by limiting the ability of their observers to watch votes being counted.Follow the latest on Election 2020<https://www.washingtonpost.com/elections/?itid=lk_interstitial_hub_election>

Trump and Rudolph W. Giuliani, his personal attorney, have said repeatedly that more than 600,000 votes in Philadelphia and Pittsburgh should be invalidated because of this issue.

Trump’s pared-down lawsuit now focuses on allegations that Republicans were illegally disadvantaged because some Democratic-leaning counties allowed voters to fix errors on their mail ballots. Counties have said this affected only a small number of votes.

Cliff Levine, an attorney representing the Democratic Party in the case, said on Sunday evening that Trump’s move meant his lawsuit could not possibly change the result.

“Now you’re only talking about a handful of ballots,” Levine said. “They would have absolutely no impact on the total count or on Joe Biden’s win over Donald Trump.”

Kathy Boockvar, Pennsylvania’s Democratic secretary of state, submitted a court filing in response to the Trump campaign’s actions reiterating her request for the judge to dismiss the lawsuit.

The shift comes amid a string of losses in the Trump campaign’s post-election legal effort, which claimed without evidence that voter fraud, irregularities and rule-breaking led to Biden’s victory. The flurry of post-election litigation has affirmed the integrity of the election<https://www.washingtonpost.com/politics/trump-election-legal-challenges/2020/11/14/904fbd04-25e2-11eb-a688-5298ad5d580a_story.html?itid=lk_inline_manual_11>: Many of the complaints have been tossed, and not a single vote has been invalidated.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“The federal government’s chief information security officer is helping an outside effort to hunt for alleged voter fraud”<https://electionlawblog.org/?p=118674>
Posted on November 15, 2020 7:17 pm<https://electionlawblog.org/?p=118674> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/trump-voter-integrity-fund/2020/11/15/89986f1c-25fe-11eb-952e-0c475972cfc0_story.html>

The federal government’s chief information security officer is participating in an effort backed by supporters of President Trump to hunt for evidence of voter fraud in the battleground states where President-elect Joe Biden secured his election victory.Follow the latest on Election 2020<https://www.washingtonpost.com/elections/?itid=lk_interstitial_hub_election>

Camilo Sandoval said in an interview that he has taken a break from his government duties to work for the Voter Integrity Fund, a newly formed Virginia-based group that is analyzing ballot data and cold-calling voters in an attempt to substantiate the president’s outlandish claims about illicit voting.

Sandoval is one of several Trump appointees in the federal government — some in senior roles — who are harnessing their expertise for the project, according to the group’s leader.

The participation of administration officials in the project shows the extent of the efforts by the president’s allies to justify his unfounded allegations of widespread ballot fraud.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Project Veritas and Illegality”<https://electionlawblog.org/?p=118672>
Posted on November 15, 2020 7:05 pm<https://electionlawblog.org/?p=118672> by Rick Hasen<https://electionlawblog.org/?author=3>

Sam Brunson<https://surlysubgroup.com/2020/11/15/project-veritas-and-illegality/> on some tax implications.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, tax law and election law<https://electionlawblog.org/?cat=22>


“Pro-Trump forces spin legal wheels in challenging Michigan election results”<https://electionlawblog.org/?p=118669>
Posted on November 15, 2020 8:52 am<https://electionlawblog.org/?p=118669> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit Free Press:<https://www.freep.com/story/news/politics/elections/2020/11/15/donald-trump-losing-michigan-lawsuits/6269524002/>

Lawsuits filed in the wrong courts.

Naming the wrong defendants.

Alleging facts with no connection to the defendants being sued.

Forces backing Republican President Donald Trump have filed at least five lawsuits in state and federal courts in Michigan seeking to delay or stop the state’s certification of 16 electoral votes for Democratic President-elect Joe Biden.

With every Michigander’s vote cast and counted in the presidential contest, showing Biden defeating Trump by close to 150,000 votes according to the unofficial tally, elections workers statewide are now undertaking the tedious process of officially certifying the vote and converting the state’s popular vote into the state’s Electoral College votes. That process relies on local and state election officials meeting a series of tight deadlines and fulfilling their legal duties. And derailing this process appears to be a goal the lawsuits all share.

The suits could create significant complications if they produced court orders delaying certification of election results in key Michigan counties beyond Tuesday’s deadline, or dragged out thecertification of statewide results beyond the Dec. 8 “safe harbor” date by which Congress is required to accept Michigan’s electoral votes.

But the suits have been marked by unusual legal missteps and repeated judicial setbacks. Some analysts say it is difficult to discern a coherent strategy, other than to seek to undermine overall confidence in the elections process….

Sam Bagenstos, a U-M law professor who was a Democratic nominee to the Michigan Supreme Court in 2018, said the True the Vote federal lawsuit “picked the big Democratic jurisdictions and said, ‘Let’s invalidate all the votes of the people there.’ It’s outrageous and anti-democratic and it’s based on nothing in terms of the allegations,” he said.

I think Sam is being overly generous in his description of this True the Vote suit, which I consider to be racist.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump acknowledges Biden’s win, but quickly reverses, saying ‘I concede NOTHING!’”<https://electionlawblog.org/?p=118667>
Posted on November 15, 2020 8:44 am<https://electionlawblog.org/?p=118667> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/live/2020/11/15/us/joe-biden-trump?action=click&module=Top%20Stories&pgtype=Homepage#trump-acknowledges-bidens-win-but-quickly-reverses-saying-i-concede-nothing>

WASHINGTON — President Trump appeared to briefly acknowledge for the first time Sunday morning that former Vice President Joseph R. Biden Jr. had defeated him in the presidential election, but quickly reversed himself less than two hours later, insisting that “I concede NOTHING! We have a long way to go.”

The dueling tweets came as Mr. Trump continued to lie about the conduct of the vote-counting process, falsely insisting that Mr. Biden’s victory was the result of a “Rigged” election orchestrated by the “Fake & Silent” media.

His first tweet<https://twitter.com/realDonaldTrump/status/1327956491056279552?s=20> came Sunday morning at 7:47. Referring to Mr. Biden, the president said that “he won.” That represented the first time Mr. Trump had publicly said what his advisers have been telling him for days privately: His re-election bid failed and Mr. Biden will be inaugurated on Jan. 20.

After a flurry of tweets and news reports about his “concession,” Mr. Trump insisted that he had been misunderstood.

At 9:16, he insisted falsely: “RIGGED ELECTION. WE WILL WIN!” And three minutes later, he wrote that Mr. Biden “only won in the eyes of the FAKE NEWS MEDIA. I concede NOTHING! We have a long way to go. This was a RIGGED ELECTION!”

The rapid online flip-flop made it clear that Mr. Trump is still refusing to abandon the lies about the election being rigged and stolen that he has been spreading since Election Day, inflaming anger among his supporters about his defeat.
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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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