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

[Rick Hasen]

Michigan Senate Leader Issues Statement After Meeting with Trump That Throws Cold Water on Rogue Electoral College Slate Gambit<https://electionlawblog.org/?p=118897>
Posted on November 20, 2020 3:15 pm<https://electionlawblog.org/?p=118897> by Rick Hasen<https://electionlawblog.org/?author=3>

The latest<https://twitter.com/kyledcheney/status/1329924650210570244>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Minnesota: “Facts don’t support GOP Chair Carnahan’s election claims”<https://electionlawblog.org/?p=118895>
Posted on November 20, 2020 2:57 pm<https://electionlawblog.org/?p=118895> by Rick Hasen<https://electionlawblog.org/?author=3>

MPR reports.<https://www.mprnews.org/story/2020/11/20/mngop-chairs-election-claims-unsupported-by-facts>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Leading Republican Election Attorneys Rob Kelner and Mark Braden (Separately) Reject Trump’s Bonkers Voter Fraud Theories to Try to Overturn Election Results<https://electionlawblog.org/?p=118893>
Posted on November 20, 2020 2:40 pm<https://electionlawblog.org/?p=118893> by Rick Hasen<https://electionlawblog.org/?author=3>

Rob Kelner<https://twitter.com/robkelner/status/1329567165587054592>:

The Hill:<https://thehill.com/homenews/administration/526938-more-conservatives-break-with-trump-over-election>

The lawyers have not taken that claim to court and have not provided any evidence to support it.

“This is delusional,” said Mark Braden, the former chief counsel at the RNC. “I’m a professional Republican so it’s not easy for me to have to deal with my friends on this. Look — voter fraud occurs. I’ve seen it. It happens. But you have to be realistic about the size and scope of it.”

Republican lawyers interviewed by The Hill said Trump’s early legal challenges on voter fraud were defensible and reasonable, even if they had no chance of changing the outcome of the election. But they’re disturbed by the dark turn things have taken, and worried that Trump’s claims are undermining democracy and misleading millions of his own supporters.

“The Venezuelans didn’t screw around with the voting machines,” Braden said. “That’s 100 percent total nonsense. I don’t know what’s going on here. It’s very dangerous that we’re undermining the system. Democracy isn’t a God-given right. It’s a fragile process. The two most important things are that the person with the most lawful votes wins, and that the people who voted for the losing side also believe their candidate lost. This is undermining that idea and it’s a dangerous thing.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Why Trump Will Fail in Michigan”<https://electionlawblog.org/?p=118891>
Posted on November 20, 2020 1:55 pm<https://electionlawblog.org/?p=118891> by Richard Pildes<https://electionlawblog.org/?author=7>

I’ve just published this new New York Times piece<https://www.nytimes.com/2020/11/20/opinion/trump-michigan-election.html?action=click&module=Opinion&pgtype=Homepage>:

The country is coming to a crossroad on Monday. That’s the date Michigan is to certify the results of the 2020 election. Yet President Trump has chosen a state he lost by more than 150,000 votes — more than 14 times the size of his 2016 victory in Michigan — to try to subvert the election.

Having failed in the courts, President Trump is now grasping at a new lifeline: pressuring Republican election officials and legislators to ignore the reality that Joe Biden legitimately won the popular vote in their states. This tactic, now being played out in Michigan, is no doubt sending the anxiety levels of Biden supporters back to where they were before the courts had calmed these efforts by exposing how empty most of the legal claims were.

But this tactic, too, is destined to fail — though it is toxic for the country’s politics….

The Biden campaign and Michigan voters would likely first turn to the state or federal courts. A court would likely issue an order to the state board to certify the result — legally, this is known as issuing a writ of mandamus — because the board’s legal duty is clear and unequivocal once it has received the certified vote totals from the counties. If the resistant board members were still willing to defy the court and go to jail (presidential pardons do not apply to state crimes), a court could also issue the certification itself.

Michigan’s governor also has legal powers she could invoke, though whether she would choose to do so would involve complex political judgments. Under the state’s constitution<http://www.legislature.mi.gov/(S(ducddmaqgmiuu4pjorw2k45c))/mileg.aspx?page=GetObject&objectname=mcl-Article-V-10>, she has the power — the constitution, actually, calls it a duty — to remove or suspend from office a canvassing board member for “gross neglect of duty,” “corrupt conduct” or “for any other misfeasance or malfeasance” in carrying out their duties. Failing to certify on the facts in Michigan would easily meet this standard….

One of the many tragedies of what has gone on since the election is that we should be celebrating our achievement at having smoothly managed to conduct an exceptionally high turnout election under the most difficult circumstances. Think of the list of concerns we had in advance of the election: foreign interference; inability to staff polling places; huge lines on Election Day; excessive challenges at the polls or even violent confrontations; high rejection rates of absentee ballots; large numbers of absentees arriving too late to be counted; long delays in mail delivery that compromised the outcome…

Yet the country, mired in baseless accusations of fraud, cannot even see this achievement, let alone celebrate it. Even those who voted for Mr. Biden are too consumed with anxiety about getting safely to Jan. 20 to celebrate the country’s triumph in how well the election was run.

President Trump will undoubtedly continue to try any tactic to fend off the reality that he lost the election. But even if he manages to corrupt a few partisan actors, it will not change the outcome. The election survived the stress test we faced. The post-election process will as well.

The real danger is that the country will become increasingly ungovernable.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Some GOP Senators Ready to Speak Up to Trump About Power Transfer; Some House Members Would Go Along with An Antidemocratic Power Grab<https://electionlawblog.org/?p=118889>
Posted on November 20, 2020 1:24 pm<https://electionlawblog.org/?p=118889> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/11/20/politics/gop-lawmakers-call-on-trump-to-begin-transition/index.html>:

A GOP Senate source told CNN that the combination of Giuliani’s news conference, as well as the President meddling in the Michigan election process, has some GOP senators reconsidering their silence. This source says most had hoped that Trump’s tirade would have worked itself out by now, but his actions in the last 24 hours make that hope seem more and more distant.

According to the same source, a handful of GOP senators are talking about whether and how to interject in a way that will be most effective with the President. There is some talk of trying to speak to Trump and trying to implore him to go out on a high note by touting wins in the House, as well as helping win the two outstanding US Senate seats in Georgia and taking credit for the Covid-19 vaccine movement, among other accomplishments.

The source emphasized, however, that this is not a leadership position right now — more rank and file Republicans….

North Carolina Rep. Richard Hudson, who will serve on the House GOP’s leadership team in the next Congress, on Friday characterized the unsubstantiated allegations leveled by the Trump team as “breathtaking” and “serious enough that they need to be investigated.”

Hudson said “yes,” states should delay certifying the results until the allegations are “adequately investigated.”

Asked if he’d be OK if state legislatures named electors that differed from the outcome of the vote counts in their states, Hudson told CNN: “Yeah, that’s the constitutional process.”

“I mean, it’s breathtaking to think about,” Hudson said of the allegations. “And if it’s not true, then there needs to be a reckoning on our side.”

Federal law encourages states to resolve disputes over vote-counting by December 8, six days before electors meet in their state capitals to cast their ballots. If Biden’s win is certified by December 8, Congress must recognize the pro-Biden electors.

Under the long-shot theory, Republican-led legislatures could appoint pro-Trump slates of presidential electors, even if Biden carried the popular vote in their state, assuming a state has not certified the vote in time.A

sked on Thursday if his state should delay certifying the election, Arizona Rep. Paul Gosar told CNN: “I believe it should.” Gosar also said the “state has the ability” to name its own electors to the Electoral College if the results aren’t certified as part of the “system set up by our founders.” And when asked if he would support the state legislature naming its own electors, Gosar said: “I do.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


How Many Provisional Ballots are Actually at Stake in the PA Lawsuit?<https://electionlawblog.org/?p=118887>
Posted on November 20, 2020 11:53 am<https://electionlawblog.org/?p=118887> by Richard Pildes<https://electionlawblog.org/?author=7>

The most recent Trump campaign legal complaint in PA argues, in part, that in Biden-leaning counties, voters were given notice and an opportunity to cure absentee ballot defects and vote a provisional ballot, while voters in Trump-leaning counties were not.

For perspective, here are the numbers for provisional ballots cast statewide in PA (assuming I’ve added up correctly the numbers at the PA’ Department of State website<https://www.electionreturns.pa.gov/General/SummaryResults?ElectionID=83&ElectionType=G&IsActive=1>:

Biden: 51,866

Trump: 47,333

Jo Jorgensen: 1,218

In advance, the expectation was that provisional ballots would tilt heavily toward Biden, as did absentee ballots. That’s because voters who show up at the polls and have the types of problems that lead them to have to cast provisional ballots are more likely to come from the groups that tended to support Biden.

In fact, as it turns out, Biden’s vote share among the provisionals was very close to his vote share for all the votes cast in PA. Statewide, Biden has won 50.0% of the vote, based on the most recent numbers, which are still not fully complete. Based on the numbers above, Biden won about 51.65% of the provisionals. If he had won only 50% of the provisionals, consistent with his overall statewide support, he would have had about 1,600 fewer provisional votes.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s Disgraceful Gambit”<https://electionlawblog.org/?p=118884>
Posted on November 20, 2020 9:34 am<https://electionlawblog.org/?p=118884> by Rick Hasen<https://electionlawblog.org/?author=3>

National Review<https://www.nationalreview.com/2020/11/trumps-disgraceful-gambit/> editorial:

The Rudy Giuliani–led press conference at the RNC yesterday was the most outlandish and irresponsible performance ever by a group of lawyers representing a president of the United States.

If Giuliani’s charge of a “national conspiracy” to produce fraudulent votes in Democratic cities around the country wasn’t far-fetched enough, attorney Sidney Powell ratcheted it up with the allegation that Communist-designed election machinery was used to change the vote from a Trump landslide to a narrow Biden victory. An obvious question is why, if you can manipulate the vote count via machine, you’d need to bother with old-fashioned fraudulent ballots. Powell’s story is that the surprisingly strong Trump turnout “broke the algorithm” of the corrupted machines, and then the fraudulent ballots were desperately hauled in to make up the difference.

This is lawyering worthy of the comments section of Breitbart News.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Dark Money in the 2020 Election”<https://electionlawblog.org/?p=118882>
Posted on November 20, 2020 9:22 am<https://electionlawblog.org/?p=118882> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy for the Brennan Center<https://www.brennancenter.org/our-work/analysis-opinion/dark-money-2020-election>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


Michigan: “Clerks urge election changes during boisterous legislative inquiry”<https://electionlawblog.org/?p=118880>
Posted on November 20, 2020 8:45 am<https://electionlawblog.org/?p=118880> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News<https://www.detroitnews.com/story/news/politics/2020/11/19/clerks-urge-election-changes-during-boisterous-michigan-legislative-inquiry/6346980002/>:

In a Thursday meeting punctuated by outbursts from attendees, a wheelbarrow full of letters and repeated calls to order, two county clerks recommended a raft of election changes during the first testimony taken in a legislative inquiry into the Nov. 3 election.

The three-hour joint oversight committee hearing was the first to take testimony on Michigan’s Nov. 3 election, where unproven allegations of election fraud and ballot irregularities prompted Michigan lawmakers to subpoena voting-related records from the state to examine the issues.

Some attendees seeking to “Stop the Steal” attended the meeting, grumbling about some responses and laughing when witnesses said dead voters did not vote in Michigan.

Democratic lawmakers questioned the value of the hearing. Democratic Rep. Cynthia Johnson of Detroit yelled at the end of the meeting when she didn’t get a question in, and criticized the GOP-led Legislature for holding such a meeting during a pandemic. She was gaveled down by Republican Sen. Ed McBroom of Vulcan.
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“Georgia recount shows ‘verdict of the people,’ says elections head”<https://electionlawblog.org/?p=118878>
Posted on November 20, 2020 8:43 am<https://electionlawblog.org/?p=118878> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC<https://www.ajc.com/politics/georgia-recount-shows-verdict-of-the-people-says-elections-head/7ARKVPQM3VAXJOEFZYQTV477II/>:

Secretary of State Brad Raffensperger said “numbers don’t lie” as he plans to certify<https://www.ajc.com/politics/georgia-official-set-to-certify-states-vote-as-pence-visits-the-state/Q33XGCE6LVCRTK3B3WQMU656NA/> Georgia’s election results Friday that showed Joe Biden defeated President Donald Trump.

Biden was ahead of Trump by over 12,000 votes in both machine counts and a manual recount<https://www.ajc.com/politics/breaking-georgia-manual-recount-confirms-biden-victory/B7LNNHYZOVGKZBUVAT7NZT3VZE/> of paper ballots.

“Like other Republicans, I’m disappointed our candidate didn’t win,” Raffensperger said during a news conference at the state Capitol. “Working as an engineer throughout my life, I live by the motto that numbers don’t lie. As secretary of state, I believe that the numbers that we have presented today are correct. The numbers reflect the verdict of the people.”

A manual recount and audit of all ballots found that Biden received 12,284 more votes than Trump, according to results released Thursday. The recount was within 500 votes of initial machine ballot counts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Federal judge rejects Trump ally’s bid to block election certification in Georgia”<https://electionlawblog.org/?p=118876>
Posted on November 20, 2020 8:39 am<https://electionlawblog.org/?p=118876> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/11/19/federal-judge-rejects-trump-allys-bid-block-election-certification-georgia-438563>

Another bid by an ally of President Donald Trump to overturn the results of this month’s election was roundly rejected in court on Thursday, as a federal judge appointed by Trump turned down a bid to block the certification of President-elect Joe Biden as the victor in Georgia.

At the conclusion of a three-hour virtual hearing, U.S. District Court Judge Steven Grimberg delivered a withering assessment of the suit that a prominent attorney, Lin Wood, filed to try to stop officials from finalizing a tally that has Trump trailing Biden by more than 12,000 votes.

Grimberg said it was clear that, as an individual voter, Wood lacked legal standing to mount the challenge to Georgia’s election procedures. But the judge — a former prosecutor whom Trump nominated last year — also emphasized that evidence of improprieties seemed limited to isolated cases and far short of what would be needed to justify a federal judge stepping in to alter the state’s election results.

“It would require halting the certification of results in a state election in which millions of people have voted,” the judge said. “It would interfere with an election after the voting was done.”

The judge also seemed to allude to the acrimonious atmosphere surrounding the election as a reason to be wary about interfering in the process as Wood requested.

“It harms the public interest in countless ways, particularly in the environment in which this election occurred,” Grimberg said. “To halt the certification at literally the 11th hour would breed confusion and potentially disenfranchisement that I find has no basis in fact or in law.”
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The Trump Campaign’s Lack of Evidence in the Pennsylvania Case Dooms It to Failure (On Top of Everything Else): What GOP Senators (And Everyone Else) Need to Know Today<https://electionlawblog.org/?p=118872>
Posted on November 20, 2020 7:48 am<https://electionlawblog.org/?p=118872> by Rick Hasen<https://electionlawblog.org/?author=3>

Yesterday Jenna Ellis of the Trump campaign (who had comically attacked <https://lawandcrime.com/awkward/trump-campaigns-jenna-ellis-mocked-election-law-expert-for-being-right-then-the-trump-campaign-proved-him-right/> me for noting that one of campaign’s proposed orders erred in signing a proposed order as if the judge had signed it) said at a press conference that the press did not understand how the law worked and that there was no need for the campaign to produce evidence in its attempt to overturn the results of the election. (“Your question<https://twitter.com/atrupar/status/1329493386999586817> is fundamentally flawed, when you’re asking, ‘where’s the evidence?’ You clearly don’t understand the legal process.”)

Ellis has a point when it comes to a court considering a motion to dismiss a complaint (where the court does not look at the evidence but instead whether the allegations in the complaint are “plausible” and state a claim that a court can grant relief to), but she’s totally wrong when it comes to the question of the campaign’s Motion<https://electionlawblog.org/wp-content/uploads/pa-183.pdf> for a temporary restraining order/preliminary injunction filed in a federal court in Pennsylvania seeking not just to stop certification but to provide a basis for overturning the election.

At this stage in the process, the campaign must produce evidence to support its claims, because a key question that courts look at in deciding whether to grant a motion for a TRO or preliminary injunction is likelihood of success on the merits: which requires showing the law and facts are on your side, at least at this preliminary stage.

But the campaign did not do that. Not only did it not present evidence of fraud, which Giuliani admitted at Tuesday’s court hearing they were not going to do in this case despite loose talk in the complaint: the motion provides no statistical evidence to support its theory that supposed illegal votes could be deducted from Biden and Trump which would hand Trump the victory. It says it has retained an expert but includes no report whatsoever (and the claim is based upon faulty math<https://electionlawblog.org/?p=118868>). The campaign wants a delay in certification (which can come as early as Monday so that it could try to find evidence). This comes too late.

On top of that, their theory that they can just deduct votes based upon some kind of promised (but not provided) statistical analysis is crazy. As Ned Foley, the country’s leading exper<https://www.amazon.com/Ballot-Battles-History-Disputed-Elections/dp/0190235276>t in contested elections through American history, explains:<https://twitter.com/Nedfoley/status/1329638818580992000> “Trump brief in PA fed court opens with admission that it lacks evidence: see p2 n2. It speculates that IF 10% of mail ballots were unlawful, then statistics MIGHT cast doubt on Biden’s win; even math is wrong because Biden’s margin now is 81K, not 75K. No court, especially not a federal court, should negate an election based on this kind of non-showing. Trump seeks bogging the election down in fed court “discovery” of every mail ballot based on nothing more than conjecture that there might be problems with enough of them. If a state-law judicial contest of an election were filed based on nothing more than this kind of speculation, it would be quickly dismissed for lack of factual predicate for going forward. Fed court should not provide end-run around state-law process.”

I’d add that the complaint points to no authority for this kind of deduction, which is not how election contests are typically proven in state court. You’d have to prove (not just surmise) that there were enough illegal votes accepted for Biden combined with enough legal votes that were not accepted for Trump to make up an 81,000 vote difference; you don’t do this with statistics, you do this with actual evidence. And the actual evidence of such illegal votes counted or legal votes not counted in this litigation is: zero.

This lack of evidence is no surprise and it infects the Trump and Trump-allied lawsuits around the country.

Look, the complaint in Pennsylvania is not likely to survive a motion to dismiss: there are strong arguments that the campaign has no standing to bring this claim under Third Circuit precedent; that the claim is barred by the doctrine of laches <https://electionlawblog.org/?p=117751> because the campaign could have brought these claims before the election and to bring it now would disenfranchise hundreds of thousands of Pennsylvania voters and overturn the will of the people based upon no showing of any illegal ballots; that their Bush v. Gore equal protection theory does not apply to this context; and that the appropriate forum to contest an election is a state court rather than a federal court.

But even if the Trump campaign overcame all of these hurdles and the court would take a look at the evidence, their request for relief fails for a fundamental lack of proof. We are in an emergency election contest. You can’t try to get relief two and a half weeks after a federal election without proof but promising proof to come.

As I told the AP,<https://www.washingtonpost.com/politics/trumps-election-lawsuits-plagued-by-elementary-errors/2020/11/19/5d5b477a-2aa0-11eb-9c21-3cc501d0981f_story.html> “It’s kind of a fallacy to say, well, Trump might be doing better if he had better lawyers. Part of the reason he doesn’t have good lawyers is he doesn’t have good claims to bring.”

GOP senators like Senator Hawley who say they are waiting<https://twitter.com/JakeSherman/status/1329787844680962048> to see what evidence is produced in court don’t have to wait any longer. There’s nothing here.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Math Mistake in the Latest Trump Campaign PA Filing<https://electionlawblog.org/?p=118868>
Posted on November 20, 2020 7:13 am<https://electionlawblog.org/?p=118868> by Richard Pildes<https://electionlawblog.org/?author=7>

There’s a simple mathematical confusion in this filing. The filing says:

“Instantly, if discovery is granted, prior to the hearing, Plaintiffs will examine these envelopes to determine the percentage of mail ballots that were illegally counted –of which Democratic Candidate Joseph Biden won approximately 75% and President Trump 25%, a 50% margin for Biden.”

That is not a 50% margin for Biden.  It is a 50 percentage point margin.  In fact, Biden received three times more of the absentee vote than did Trump. The difference between percentages and percentage points is often very large, as this example illustrates.

This is not the worst mistake in the world. It is not uncommon to confuse percentage points and percentages. Still, this is a legal filing in federal court.
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“Tucker Carlson bashes Trump attorney Sidney Powell for lack of evidence in fraud claims: ‘She never sent us any’”<https://electionlawblog.org/?p=118866>
Posted on November 20, 2020 6:16 am<https://electionlawblog.org/?p=118866> by Richard Pildes<https://electionlawblog.org/?author=7>

The Washington Post:<http://instantly%2C%20if%20discovery%20is%20granted%2C%20prior%20to%20the%20hearing%2C%20plaintiffs%20will%20examine%20these%20envelopes%20to%20determine%20the%20percentage%20of%20mail%20ballots%20that%20were%20illegally%20counted%20–of%20which%20democratic%20candidate%20joseph%20biden%20won%20approximately%2075%25%20and%20president%20trump%2025%25%2C%20a%2050%25%20margin%20for%20biden.%20%20%20that%20is%20not%20a%2050%25%20margin%20for%20biden.%20%20it%20is%20a%2050%20percentage%20point%20margin.%20%20the%20mistake%20is%20not%20unusual%2C%20but%20there%20is%20quite%20a%20large%20difference%20between%20the%20two%20in%20this%20context%2C%20as%20in%20many./>

As Fox News host Tucker Carlson noted on Thursday night, he’s more than willing to give airtime to outlandish claims. “We literally do UFO segments,” he said.

But even Carlson said he was fed up with the total lack of evidence produced by Sidney Powell, one of the Trump campaign’s attorneys, for her unfounded allegation<https://www.washingtonpost.com/politics/2020/11/19/fact-checking-craziest-news-conference-trump-presidency/?itid=lk_inline_manual_3> that electronic voting systems had switched millions of ballots to favor President-elect Joe Biden.

“We invited Sidney Powell on the show. We would have given her the whole hour,” Carlson said. “But she never sent us any evidence, despite a lot of requests, polite requests. Not a page. When we kept pressing, she got angry and told us to stop contacting her.”

Carlson also noted: “She never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.”
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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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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