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

[Rick Hasen]

“Trump told ally he’s trying to get back at Democrats for questioning legitimacy of his own election”<https://electionlawblog.org/?p=118863>
Posted on November 19, 2020 5:36 pm<https://electionlawblog.org/?p=118863> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/11/19/politics/trump-democrats-election/index.html>:

President Donald Trump told an ally that he knows he lost, but that he is delaying the transition process<https://www.cnn.com/2020/11/19/politics/what-matters-november-18/index.html> and is aggressively trying to sow doubt about the election results in order to get back at Democrats for questioning the legitimacy of his own election in 2016, especially with the Russia investigation, a source familiar with the President’s thinking told CNN on Thursday.

The President’s refusal to concede, as CNN has previously reported<https://www.cnn.com/2020/11/16/politics/trump-election-challenge-biden-legitimacy/index.html>, stems in part from his perceived grievance that Hillary Clinton and former President Barack Obama undermined his own presidency by saying Russia interfered in the 2016 election and could have impacted the outcome, people around him have said.Trump continues to hold a grudge against those who he claims undercut his election by pointing to Russian interference efforts, and he has suggested it is fair game to not recognize Joe Biden<https://www.cnn.com/2020/11/19/politics/biden-governors-meeting/index.html> as the President-elect, even though Clinton conceded on election night in 2016 and the Trump transition was able to begin immediately.

Trump is also continuing to process the emotional scars of losing to a candidate he repeatedly said during the campaign was an unworthy opponent whose win would amount to humiliation. He again made no public appearances on Thursday, skipping the first coronavirus task force briefing at the White House in more than six months. He is planning to participate in a virtual Asian Pacific Economic Cooperation summit Friday, a senior administration official told CNN.

Trump has heard from a multitude of friends and business associates who have been urging him to at least let the transition begin, even if he doesn’t want to concede, another source who is also familiar with the President’s thinking told CNN. His answer: No. You’re wrong. “Absolutely wrong,” according to one source.

When Trump has been told to get Rudy Giuliani <https://www.cnn.com/2020/11/19/politics/rudy-giuliani-chaos-election/index.html> and other members of his legal team off the case, the President has disagreed. He wants to continue the fight, and people close to the President have even expressed concern that he is buying into Giuliani’s false claims that his legal efforts can change the election’s outcome. He has shown no signs of backing down, even as those around him continue indicating that the end is near. Those allies have expressed worry that a sizable faction of the country thinks the election was stolen from Trump and that Biden isn’t receiving national security briefings.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Trump Targets Michigan in His Ploy to Subvert the Election”<https://electionlawblog.org/?p=118861>
Posted on November 19, 2020 5:34 pm<https://electionlawblog.org/?p=118861> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/11/19/us/politics/trump-michigan-election.html>

President Trump on Thursday accelerated his efforts to interfere in the nation’s electoral process, taking the extraordinary step of reaching out directly to Republican state legislators from Michigan and inviting them to the White House on Friday for discussions as the state prepares to certify President-elect Joseph R. Biden Jr. the winner there.

For Mr. Trump and his Republican allies, Michigan has become the prime target in their campaign to subvert the will of voters backing Mr. Biden in the recent election. Mr. Trump called at least one G.O.P. elections official in the Detroit area this week after she voted to certify Mr. Biden’s overwhelming victory there, and he is now set to meet with legislators ahead of Michigan’s deadline on Monday to certify the results.

The president has also asked aides what Republican officials he could call in other battleground states in his effort to prevent the certification of results that would formalize his loss to Mr. Biden, several advisers said. Trump allies appear to be pursuing a highly dubious legal theory that if the results are not certified, Republican legislatures could intervene and appoint pro-Trump electors in states Mr. Biden won who would support the president when the Electoral College meets on Dec. 14.

The Republican effort to undo the popular vote is all but certain to fail, as even many Trump allies concede, and it has already suffered near-total defeats in courts in multiple states, including losses on Thursday when judges in Georgia and Arizona<https://www.bloomberg.com/news/articles/2020-11-19/arizona-judge-dismisses-gop-suit-seeking-new-maricopa-recount> ruled against the Trump campaign and its allies….

High-level Republicans in key battlegrounds said they had not been pressured by Mr. Trump.

The office of Butch Miller, the Republican leader of the Georgia Senate, said he had received no overtures from the White House. Both Jake Corman, the State Senate majority leader in Pennsylvania, and Bryan Cutler, the speaker of the House there, said they had not heard from Mr. Trump.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Josh Douglas: “Trump is the true perpetrator of election fraud”<https://electionlawblog.org/?p=118859>
Posted on November 19, 2020 3:48 pm<https://electionlawblog.org/?p=118859> by Rick Hasen<https://electionlawblog.org/?author=3>

New Josh Douglas<https://www.cnn.com/2020/11/19/opinions/trump-perpetuate-election-fraud-michigan-douglas/index.html> for CNN:

Yes, there is election fraud. It’s coming from inside the White House.

President Donald Trump’s attempts to steal the election and win another term are exceedingly unlikely to work<https://www.cnn.com/2020/11/14/politics/trump-election-cases-status/index.html>. But he is already succeeding in undermining key democratic norms on which our society functions by questioning the results <https://www.cnn.com/2020/11/14/politics/donald-trump-election-falsehoods-vaccine-address/index.html> without evidence, falsely alleging <https://twitter.com/realDonaldTrump/status/1329087255168708608> voter fraud, and, according to the Washington Post, even reaching out <https://www.cnn.com/2020/11/19/politics/gop-michigan-results-trump/index.html> to a local election official charged with certifying results.

Trump, who clearly lost the presidential election by large electoral and popular vote margins, has filed lawsuits<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.nytimes.com_2020_11_13_us_politics_trump-2Delection-2Dlawsuits.html&d=DwMF-g&c=tq9bLrSQ8zIr87VusnUS9yAL0Jw_xnDiPuZjNR4EDIQ&r=3IfSHiskg3NGgkCT6beCbBSrTvH4uMdWeRcNt-8-sGs&m=_h2HhdQ1z60cKA3TyWx-EMJgZjRUMKJz-z3gLb1_Pss&s=bQVkINakzv1yhRwJUSJV9W7PAoChCNXljFnQz7Omb_w&e=> in numerous battleground states that have largely gone nowhere. He has lied about massive voter fraud, which doesn’t exist<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.washingtonpost.com_politics_2020_11_17_biggest-2Drebukes-2Dtrumps-2Dvoter-2Dfraud-2Dclaims_&d=DwMF-g&c=tq9bLrSQ8zIr87VusnUS9yAL0Jw_xnDiPuZjNR4EDIQ&r=3IfSHiskg3NGgkCT6beCbBSrTvH4uMdWeRcNt-8-sGs&m=_h2HhdQ1z60cKA3TyWx-EMJgZjRUMKJz-z3gLb1_Pss&s=MerEpaD3q4blzB2zhhkC4axGJZKJWCM1N5kGq2IIkGM&e=>. His lawyer, Rudy Giuliani, even suggested <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.washingtonpost.com_politics_trump-2Delection-2Dstrategy_2020_11_18_94fbe50e-2D29c9-2D11eb-2D92b7-2D6ef17b3fe3b4-5Fstory.html&d=DwMF-g&c=tq9bLrSQ8zIr87VusnUS9yAL0Jw_xnDiPuZjNR4EDIQ&r=3IfSHiskg3NGgkCT6beCbBSrTvH4uMdWeRcNt-8-sGs&m=_h2HhdQ1z60cKA3TyWx-EMJgZjRUMKJz-z3gLb1_Pss&s=ZRySS2mpy_OzhhCg4o8R1Ch-zeZ1sSQsyuQR7Jr177k&e=> that his goal is to delay certification of the results, enabling Republican legislators to thwart the will of the people and simply award Trump the Electoral College votes he needs to win — an anti-democratic idea that is bound to fail given statements<https://urldefense.proofpoint.com/v2/url?u=https-3A__apnews.com_article_election-2D2020-2Djoe-2Dbiden-2Ddonald-2Dtrump-2Dlegislature-2Dpennsylvania-2Db199b2debc87fbb20612a48835bc0dba&d=DwMF-g&c=tq9bLrSQ8zIr87VusnUS9yAL0Jw_xnDiPuZjNR4EDIQ&r=3IfSHiskg3NGgkCT6beCbBSrTvH4uMdWeRcNt-8-sGs&m=_h2HhdQ1z60cKA3TyWx-EMJgZjRUMKJz-z3gLb1_Pss&s=dWZ16rGtH360HddMKIDSxT6IsHGmV1-emtKu73RWXvg&e=> from Republican legislators in key states and Democratic governors who won’t go along with attempts to undermine the electoral process.

And perhaps in the most egregious action to date, Trump personally called <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.washingtonpost.com_nation_2020_11_19_wayne-2Dcounty-2Drescind-2Dcertifying-2Delection_&d=DwMF-g&c=tq9bLrSQ8zIr87VusnUS9yAL0Jw_xnDiPuZjNR4EDIQ&r=3IfSHiskg3NGgkCT6beCbBSrTvH4uMdWeRcNt-8-sGs&m=_h2HhdQ1z60cKA3TyWx-EMJgZjRUMKJz-z3gLb1_Pss&s=btRi3WS-B5ODkNEILenqlLilT9HUu6nAv5G38ZHqPzM&e=> Republican Monica Palmer, a local election official in Wayne County, Michigan, after which she sought to change her vote on whether to certify the results.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


National Geographic: “Here’s what happens if a U.S. president refuses to leave office”<https://electionlawblog.org/?p=118857>
Posted on November 19, 2020 3:05 pm<https://electionlawblog.org/?p=118857> by Richard Pildes<https://electionlawblog.org/?author=7>

Who knew the National Geographic wrote stories<https://www.nationalgeographic.com/history/2020/11/what-happens-american-president-refuses-leave-office/#close> on these issues, too.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Read Trump Campaign’s Motion for Temporary Restraining Order Asking Federal Court to Stop Certification of Pennsylvania Presidential Election for Biden<https://electionlawblog.org/?p=118854>
Posted on November 19, 2020 2:06 pm<https://electionlawblog.org/?p=118854> by Rick Hasen<https://electionlawblog.org/?author=3>

Here’<https://electionlawblog.org/wp-content/uploads/pa-183.pdf>s the filing.

Also pending is the motion to dismiss.

Briefing ends Saturday and certification can come as early as Monday, so I expect a ruling on Saturday or Sunday.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump Now Actively Trying to Subvert Election”<https://electionlawblog.org/?p=118852>
Posted on November 19, 2020 1:52 pm<https://electionlawblog.org/?p=118852> by Rick Hasen<https://electionlawblog.org/?author=3>

Political Wire<https://politicalwire.com/2020/11/19/trump-now-actively-trying-to-subvert-election/>:

“President Trump’s strategy for retaining power despite losing the U.S. election is focused increasingly on persuading Republican legislators to intervene on his behalf in battleground states Democrat Joe Biden won,” Reuters<https://www.reuters.com/article/us-usa-election-trump-strategy-idUSKBN27Z30G> reports.

“Having so far faced a string of losses in legal cases challenging the Nov. 3 results, Trump’s lawyers are seeking to enlist fellow Republicans who control legislatures in Michigan and Pennsylvania, which went for Trump in 2016 and for Biden in 2020.”

A real headline from the New York Times<https://www.nytimes.com/live/2020/11/19/us/joe-biden-trump-updates?action=click&module=Spotlight&pgtype=Homepage>: “Trump Asks Michigan Lawmakers to White House In Bid to Subvert Election”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Dec. 10 Event with Erwin Chemerinsky and Me (Moderated by Stephen Rohde): “The Unprecedented 2020 Election and the Future of Voting and Democracy in America”<https://electionlawblog.org/?p=118849>
Posted on November 19, 2020 1:37 pm<https://electionlawblog.org/?p=118849> by Rick Hasen<https://electionlawblog.org/?author=3>

Details<https://www.tfaforms.com/forms/view/4853685/?tfa_dbWorkflowId=5062&tfa_dbWorkflowStep=0&tfa_dbWorkflowControl=693ec04a3f687ed26dd2fb790c40884c&id=a1b5w00000DkGkx&eid=>:
[flyer]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Tweet of the Day: Chris Krebs on the Trump Legal Team “Press Conference”<https://electionlawblog.org/?p=118847>
Posted on November 19, 2020 1:01 pm<https://electionlawblog.org/?p=118847> by Rick Hasen<https://electionlawblog.org/?author=3>

Wow<https://twitter.com/C_C_Krebs/status/1329521812951142400>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s election lawsuits plagued by elementary errors”<https://electionlawblog.org/?p=118843>
Posted on November 19, 2020 12:32 pm<https://electionlawblog.org/?p=118843> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports<https://www.myjournalcourier.com/news/article/Trump-s-election-lawsuits-plagued-by-elementary-15740314.php>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


PA Senate Republican Leader on the PA Legislature’s Role in Choosing Electors<https://electionlawblog.org/?p=118841>
Posted on November 19, 2020 11:01 am<https://electionlawblog.org/?p=118841> by Rick Hasen<https://electionlawblog.org/?author=3>

From this Jonathan Lai interview<https://fusion.inquirer.com/politics/election/pennsylvania-election-jake-corman-20201119.html>:

Tell me about the state legislature’s role with regard to the rest of the process. There are a lot of people worried about some sort of overturning of results.

The electors are selected by the winner of the popular vote. That is in our state statute. The only way, I think — and I’m still not even sure we could do it — the only way the legislature would have a role in electors is if there was no certification of the results. If we were at the time when the Electoral College is going to meet and Pennsylvania’s results haven’t been certified and it’s still challenged in court, and there’s no end to that, then possibly the legislature would have a role there.

But I’ve never suggested that we would do anything but what the law states. The law states that when the Secretary of State certifies the election, the governor appoints the electors. That’s the law. And we will follow the law.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Trump Summons Michigan Republican Legislative Leaders to Washington In Possible Attempt to Mess with Electoral College Vote: Should We Worry?<https://electionlawblog.org/?p=118839>
Posted on November 19, 2020 10:10 am<https://electionlawblog.org/?p=118839> by Rick Hasen<https://electionlawblog.org/?author=3>

The Detroit News reports<https://www.detroitnews.com/story/news/politics/2020/11/19/shirkey-chatfield-set-visit-white-house-amid-election-fight/3777657001/?csp=chromepush>:

The top two leaders in the Republican-controlled Michigan Legislature are expected to visit the White House Friday, according to a source with knowledge of the plans.

The visits by Senate Majority Leader Mike Shirkey, R-Clarklake, and House Speaker Lee Chatfield, R-Levering, will come as a legal fight plays out in the battleground state with President Donald Trump attempting to challenge the results of the Nov. 3 election.

With Trump’s lawsuits faltering (the campaign voluntarily dismissed its federal suit in Michigan today), the remaining Trump play to subvert American democracy and overturn the result of the election is a crazy electoral college gambit: try to get state legislatures involved to appoint their own electors for Trump.

Senator Shirkey in Michigan has already said<https://www.detroitnews.com/story/news/politics/2020/11/17/gop-senate-leader-expects-results-wont-change-biden-win-michigan/6326704002/> he would not go along with such a gambit, but we saw Trump’s armtwisting of Republicans on the Wayne County canvassing board could lead people to change their minds.

If the Michigan legislature got together to vote to overturn the result of the election in which Joe Biden won by 150,000 votes, there would be rioting in the streets in Michigan and throughout the country. It would be an actual attempted coup, to subvert American democracy. It would call into question these Legislators’ own elections as well as put their reelection chances in serious jeopardy.

And it wouldn’t work. The certification process is continuing in Michigan, and there will be a slate of electors for Joe Biden, which will be signed by the governor (and therefore get preference in Congress under the electoral count act if there are competing slates of electors).

And of course flipping Michigan would not be enough to change the electoral college outcome. Trump would have to flip three states. By then there would be full scale civil unrest in the United States.

And the electoral college votes would be counted by both houses of Congress, which include a House led by Democrats. And it includes a likely Republican Senate but with at least a few Republican Senators of principle who would not go along with this. If this led to long stalemate, and no electoral college votes counted for President, Trump would cease to be President on January 20 pursuant to the 20th amendment, and we’d have a temporary president.

So the bottom line: we should worry because this is profoundly antidemocratic and is delegitimizing the victory of Joe Biden in a free and fair election. It is profoundly depressing we still have to discuss this. But it is extremely unlikely to lead to any different result for President.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>


“EXCLUSIVE: New Delays In Final Stage Of Census Could Foil Trump’s Plan To Rig It”<https://electionlawblog.org/?p=118837>
Posted on November 19, 2020 9:50 am<https://electionlawblog.org/?p=118837> by Rick Hasen<https://electionlawblog.org/?author=3>

Tierney Sneed<https://talkingpointsmemo.com/news/trump-delay-census-apportionment> for TPM:

The Census Bureau has identified issues in the data from the 2020 decennial census that will take an additional 20 days or so for it to fix, and thus delay the release of survey’s apportionment data until after President Trump leaves office, TPM has learned.

According to a person inside the Census Bureau, the additional time it will take to reprocess the data in question has pushed back the target date for release of the state population counts until Jan. 26 – Feb. 6.

That would mean President-elect Joe Biden will be in the White House when the Census Bureau delivers to him the numbers for him to transmit to Congress for the purposes of determining how many House seats each state will get for the next decade.
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Posted in census litigation<https://electionlawblog.org/?cat=125>


Two Guys in Southern California Tried to Commit Absentee Ballot Fraud. You WILL Believe What Happened Next<https://electionlawblog.org/?p=118835>
Posted on November 19, 2020 9:37 am<https://electionlawblog.org/?p=118835> by Rick Hasen<https://electionlawblog.org/?author=3>

They got caught<https://www.latimes.com/california/story/2020-11-17/hawthorne-men-accused-in-voter-fraud-plot-to-attain-8-000-mail-ballots-for-nonexistent-or-deceased-persons>. As you’d expect.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“If the losing party won’t accept defeat, democracy is dead”<https://electionlawblog.org/?p=118833>
Posted on November 19, 2020 9:33 am<https://electionlawblog.org/?p=118833> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley <https://www.washingtonpost.com/opinions/2020/11/19/if-losing-party-wont-accept-defeat-democracy-is-dead/> in WaPo:

If the losing party can’t accept defeat, the whole enterprise of electoral democracy is finished. Two-party competition means each party taking turns depending on what the voters want in any given election.

President Trump himself will never acknowledge this. But the Republican Party institutionally must. That is the critical challenge facing Senate Republicans and Senate Majority Leader Mitch McConnell (R-Ky.): When and how decisively will they pull the plug on Trump’s desperate effort to force upon the nation a second term that he did not earn from the electorate?

If the United States is to adhere to its foundational premise that governments derive their just powers from the consent of the governed, then Senate Republicans as a party in government need to recognize President-elect Joe Biden’s inauguration not merely as a fait accompli they cannot undo but instead the actual choice that the voters genuinely made in this election….

I remain unshaken in my confidence that, when Congress meets on Jan. 6 to perform its constitutional duty, it will properly announce Biden as the election’s winner.

The remaining questions are how many Republican senators will vote for Biden if the matter is put to a vote through challenges to slates of electors — and, more fundamentally, how many Republicans will forthrightly acknowledge the authenticity of Biden’s election.

There is no basis for denying this. Even the most conservative of election law commentators have joined the chorus to observe that courts don’t overturn elections<https://www.wsj.com/articles/this-election-result-wont-be-overturned-11605134335> without adequate evidence of invalid votes that actually made a difference in the outcome. The Trump campaign has provided no proof of that kind in any state, much less the three necessary to deny Biden an electoral college majority.

This president’s intransigence is having costly spillover effects. It is taking a toll on Republican voters’ confidence in the election results. It is causing the kind of corrosive behavior that occurred in Michigan, where the Wayne County canvassing board split 2-2 over certifying its vote tallies, despite it being obvious that Biden has won the state by a margin more than 10 times Trump’s 2016 win. The two local Republicans quickly came to their senses, but not before Team Trump tweeted<https://twitter.com/JennaEllisEsq/status/1328844700883808260> about its “huge win” — and now it seems<https://www.washingtonpost.com/nation/2020/11/19/wayne-county-rescind-certifying-election/?itid=lk_inline_manual_23> they to want to revert to rank partisanship.

The longer McConnell and his colleagues allow this unnecessary uncertainty about the election’s outcome to fester, the worse off our democracy will be.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“No, judges don’t overturn elections because of isolated irregularities.”<https://electionlawblog.org/?p=118831>
Posted on November 19, 2020 9:20 am<https://electionlawblog.org/?p=118831> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/11/19/us/politics/when-courts-overturn-elections.html>

The prevailing view today is that courts should not invalidate election results because of problems unless it is shown that the problems were of such magnitude to negate the validity of which candidate prevailed,” said Edward B. Foley, director of election law at Ohio State University’s Moritz College of Law. This is inherently difficult to do, he added, given how hard it is to provide evidence that disputed ballots were cast in favor of a particular candidate.

Professor Foley, whose book “Ballot Battles<https://www.amazon.com/Ballot-Battles-History-Disputed-Elections/dp/0190235276>” provides a history of disputed elections in the United States, described one example that illustrates how difficult it will be for the president to succeed with his claims. In an election with a margin of victory of 10,000, it would not be enough to show that there were 11,000 invalid votes, he said, “because those invalid votes might have split 50-50, not making a difference to the outcome.” (In Arizona, the closest of the major swing states, Mr. Trump trails Mr. Biden by roughly 10,000 votes.)

Mr. Trump has cited cases where irregularities and fraud have led to new elections. But his most recent examples take isolated incidents of small-scale error or fraud and misleadingly apply them to a national election in which more than 150 million ballots were cast. There was the case in Paterson, N.J., earlier this year, for instance, in which a judge recommended<https://www.northjersey.com/story/news/paterson-press/2020/08/07/paterson-nj-voter-fraud-case-judge-suggests-special-election/3318983001/> a do-over election for a seat on the City Council after evidence surfaced that mail-in ballots had been tampered with. (Just 240 votes separated the first- and second-place candidates.)
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Only 1,588 Ballots Arrived Too Late for Counting in South Florida<https://electionlawblog.org/?p=118829>
Posted on November 19, 2020 7:37 am<https://electionlawblog.org/?p=118829> by Rick Hasen<https://electionlawblog.org/?author=3>

Given all we heard about postal delays, that’s very good news<https://www.sun-sentinel.com/news/politics/fl-ne-south-florida-late-ballots-20201118-krir4gfzrzahnfcnjpr5bclrum-story.html>.
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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
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http://electionlawblog.org<http://electionlawblog.org/>




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