[EL] ELB News and Commentary 11/28/20

[Rick Hasen]

Pennsylvania Supreme Court, Citing Laches, (Unreasonable Delay) Ends Latest Challenge to Certification of Election Results<https://electionlawblog.org/?p=119119>
Posted on November 28, 2020 3:11 pm<https://electionlawblog.org/?p=119119> by Rick Hasen<https://electionlawblog.org/?author=3>

This just in:<https://twitter.com/rickhasen/status/1332823748257333248?s=20>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“In Key States, Republicans Were Critical in Resisting Trump’s Election Narrative”<https://electionlawblog.org/?p=119117>
Posted on November 28, 2020 3:06 pm<https://electionlawblog.org/?p=119117> by Rick Hasen<https://electionlawblog.org/?author=3>

Important NYT piece<https://www.nytimes.com/2020/11/28/us/politics/trump-republicans-election-results.html?smid=tw-share>:

If the president hoped Republicans across the country would fall in line behind his false and farcical claims that the election was somehow rigged on a mammoth scale by a nefarious multinational conspiracy, he was in for a surprise. Republicans in Washington may have indulged Mr. Trump’s fantastical assertions<https://www.nytimes.com/2020/11/09/us/politics/republicans-trump-concede-2020-election.html>, but at the state and local level, Republicans played a critical role in resisting the mounting pressure from their own party to overturn the vote after Mr. Trump fell behind on Nov. 3.

The three weeks that followed tested American democracy and demonstrated that the two-century-old system is far more vulnerable to subversion than many had imagined even though the incumbent president lost by six million votes nationwide<https://www.nytimes.com/interactive/2020/11/03/us/elections/results-president.html>. But in the end, the system stood firm against the most intense assault from an aggrieved president in the nation’s history because of a Republican city clerk in Michigan<https://www.nytimes.com/2020/11/23/us/politics/election-michigan-board-state-canvassers.html>, a Republican secretary of state in Georgia, a Republican county supervisor in Arizona<https://www.nytimes.com/2020/11/05/upshot/arizona-election-call.html> and Republican-appointed judges in Pennsylvania and elsewhere.

They refuted conspiracy theories, certified results, dismissed lawsuits and repudiated a president of their own party, leaving him to thunder about a supposed plot that would have had to include people who had voted for him, donated to him or even been appointed by him. The desperate effort to hang onto office over the will of the people effectively ended when his own director of the General Services Administration determined<https://www.nytimes.com/2020/11/23/us/politics/trump-transition-biden.html> that Joseph R. Biden Jr.<https://www.nytimes.com/2020/11/24/us/politics/biden-transition.html> is the president-elect and a judge Mr. Trump put on the bench chastised him for ludicrous litigation.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“As Georgia Republicans aim to unite, Trump’s ‘rigged’ claims drive a wedge”<https://electionlawblog.org/?p=119115>
Posted on November 28, 2020 3:03 pm<https://electionlawblog.org/?p=119115> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/politics/politics-blog/as-georgia-republicans-aim-to-unite-trumps-rigged-claims-drive-a-wedge/XPBOIUEOJRH67ESSQSCZ5H47IA/>

At a gun range in North Georgia, Republicans roared in applause Saturday as once-bitter rivals Doug Collins and Kelly Loeffler shook hands and then embraced over their shared determination to keep the U.S. Senate in GOP control in Jan. 5 runoffs.

At a suburban Atlanta strip mall around the same time, a pep rally turned anxious question-and-answer session with national GOP chairwoman Ronna Romney McDaniel served as a reminder that other infighting could come back to haunt Loeffler and fellow U.S. Sen. David Perdue.

While Loeffler and Collins formally buried the hatchet after more than a year of brutal intraparty warfare, McDaniel faced questions at the Cobb GOP headquarters from skeptical Republicans who bought into President Donald Trump’s claims of a “rigged” election.

In one sharp exchange, a Trump backer quizzed McDaniel on why Georgia voters should bother to invest more “money and work when it’s already decided.”

“It’s not decided. This is the key — it’s not decided,” McDaniel told the crowd of dozens, nodding toward Perdue’s roughly 88,000-vote advantage over Democrat Jon Ossoff in the first round of voting.ADVERTISING

“So if you lose your faith and you don’t vote and people walk away, that will decide it.”…

And in Cobb, one of the nation’s top Republican officials tried to persuade loyal Trump supporters to return to the polls in January to defeat Ossoff and Democrat Raphael Warnock despite the president’s allegations that the vote was marred by droves of illegal mail-in ballots.

The GOP candidates have tried to navigate those conflicting messages for weeks, appeasing Trump by calling for Republican Secretary of State Brad Raffensperger to resign and refusing to acknowledge the president’s defeat, while also presenting themselves as a “Senate firewall” and a check on a “potential President Biden.”

In a week, Trump will get a crack at the competing narratives — urging Republicans to trust a “very fraudulent” election system he claims is poisoned against him — when he stages a rally for the incumbents that will likely be held in South Georgia.

He’s not toned down his criticism, including calling Raffensperger an “enemy of the people” at a Thanksgiving Day press conference.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Pennsylvania’s top court expected to act quickly on appeal to let state proceed with election certification”<https://electionlawblog.org/?p=119113>
Posted on November 28, 2020 2:59 pm<https://electionlawblog.org/?p=119113> by Rick Hasen<https://electionlawblog.org/?author=3>

WITF<https://www.witf.org/2020/11/25/wolf-administration-asks-pa-supreme-court-to-dismiss-lawsuit-aimed-at-throwing-out-mail-in-ballots/>:

Gov. Tom Wolf and Secretary of State Kathy Boockvar say a court order to halt the next steps Pennsylvania’s election certification process could interfere with the state seating its electors – and they’re appealing to the state Supreme Court to intervene<http://www.pacourts.us/assets/files/setting-7862/file-10761.pdf?cb=154c01>.

The appeal was among a succession of court actions Wednesday stemming from the lawsuit led by U.S. Rep. Mike Kelly (R-Butler) seeking to invalidate mail-in ballots cast in the Nov. 3 election or let the Republican-majority state legislature appoint Pa.’s presidential electors.

Kelly, who represents the state’s northwestern 16th district<https://en.wikipedia.org/wiki/Pennsylvania%27s_congressional_districts#/media/File:Remedial_Plan_Statewide_Image.png>, filed the suit last weekend claiming Act 77 is unconstitutional. That’s the law enacted one year ago<https://www.witf.org/2019/10/31/wolf-signs-voting-reforms-election-security-into-law/> that let Pennsylvanians vote by mail without an excuse and ushered in other changes to election administration.

On Tuesday, Democratic Gov. Tom Wolf certified Pennsylvania’s election results<https://witf.org/2020/11/24/pennsylvania-certifies-biden-as-winner-of-presidential-vote/>. Secretary of State Kathy Boockvar signed the certificate of ascertainment for the slate of electors, awarding the state’s 20 electoral votes to Biden.

At the time, Boockvar’s office declined comment on why statewide certification happened one day before the last two of 67 counties were set to complete final certification. The announcement came within a couple hours of a filing deadline in the case in response to Kelly’s request that the court block or rescind certification<http://www.pacourts.us/assets/files/setting-7840/file-10658.pdf?cb=f563e3>, which Kelly’s attorneys claim prompted the state to rush the process<http://www.pacourts.us/assets/files/setting-7840/file-10752.pdf?cb=8311e0>. Lawyers for the state later denied that in court documents<http://www.pacourts.us/assets/files/setting-7862/file-10762.pdf?cb=961ad7>.

Then, on Wednesday, Republican Commonwealth Court Judge Patricia McCullough ordered<https://www.witf.org/2020/11/25/pennsylvania-judge-orders-halt-to-further-vote-certification/> Wolf’s administration to stop moving forward with steps in the certification process.

The administration says McCullough’s order could still interfere — without specifying how or why — with Pa. seating its electors by the so-called safe harbor deadline Dec. 8.

McCullough scheduled, then canceled, a hearing within hours Wednesday as the case was bumped up to the state Supreme Court<http://www.pacourts.us/news-and-statistics/cases-of-public-interest/election-2020/kelly-parnell-frank-kierzek-magee-sauter-kincaid-logan-vs-commonwealth-of-pennsylvania-pa-general-assembly-wolf-and-boockvar> after the Wolf and Boockvar appealed<http://www.pacourts.us/assets/files/setting-7862/file-10761.pdf?cb=154c01> to the Democratic majority judicial panel, asking them to dismiss the case.

Former Commonwealth Court Judge Robert Byer tweeted Wednesday night<https://twitter.com/Rlbyer/status/1331750946498519042> that the commonwealth’s highest court will likely act quickly (and is designated to hear any Act 77 challenges, anyway). In the meantime, McCullough’s order is unenforceable – meaning DoS could choose to proceed with certification or wait for the outcome of their appeal, Byer wrote later in an email.

MORE<https://howappealing.abovethelaw.com/2020/11/28/#137861> from How Appealing.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s Battle to Undermine the Vote in Pennsylvania”<https://electionlawblog.org/?p=119111>
Posted on November 28, 2020 9:21 am<https://electionlawblog.org/?p=119111> by Richard Pildes<https://electionlawblog.org/?author=7>

The New Yorker’s Eliza Griswold takes a detailed look<https://www.newyorker.com/news/us-journal/trumps-battle-to-undermine-the-vote-in-pennsylvania> at the state legislative politics in PA over whether to conduct an audit of the presidential election. That effort appears to have fizzled out, at least for now:

Since November 3rd, Malcolm Kenyatta, a Democratic state representative from Philadelphia, has received a stream of threatening text messages and e-mails from voters. “You must not certify the fraudulent results of this election until all LEGAL ballots are counted,” Steven P. wrote to Kenyatta. “If you do, I will work tirelessly to make sure you are not reelected.” Kenyatta has also received death threats; the most disturbing, sent from an e-mail account registered in his own name, was laden with expletives and included the words, “How much death? So much death!” Kenyatta, who is thirty, with a baby face, believes that the threats are a by-product of a near-constant campaign waged by Donald Trump<https://www.newyorker.com/tag/donald-trump> and his Republican colleagues to undermine the results of a free and fair election<https://www.newyorker.com/tag/2020-election>. “There is a contingent of Republicans who are afraid of Trump,” he told me. “Others really believe him.”…

The audit was to be overseen by the Legislative Budget and Finance Committee, and would scrutinize thousands of ballots, county by county. It would focus especially on claims that Pennsylvania’s secretary of state had created procedural inconsistencies in voting between counties, which Republicans argued could mean that thousands of votes in the state were unconstitutional. The effort could no longer stop certification; the governor announced that the Pennsylvania Department of State had certified Pennsylvania’s vote on Tuesday. But the audit seemed designed to cast doubt on the process and sow confusion, and perhaps to retroactively challenge the certification. “Claims that aren’t based in reality don’t deserve investigation,” Kenyatta told me. “What’s troubling is the strategic decision to bring them forward in the first place.”…

On November 19th, the resolution to begin the audit came to the House floor and passed 112–90. Kenyatta spoke out vehemently. “I told my colleagues that this constant drumbeat supporting what Trump is saying on Twitter has a corrosive effect on our democracy,” he told me. “Now every election—from school board to tax collector—now people who don’t win get to cry foul.” After the vote, Kenyatta worked with the organization OnePA on voter-protection efforts, to lead a grassroots campaign against the resolution. Support in Harrisburg seemed to be wavering. Grove told me that the White House scheduled a call between Republican legislators and Trump, though it never took place.

The last step required to approve the audit was a vote from the leadership of the Legislative Budget Finance Committee. The vote is typically a rubber stamp: the committee is charged with scores of audits each year, and it has not refused to comply in recent memory. But, during a hearing, its two Democratic leaders spoke against the resolution. “I’m at a loss as to what, what the purpose of the resolution is and why it’s even necessary,” Senator Jim Brewster, one of the leaders, said. The other, Representative Jake Wheatley, Jr., questioned whether the committee even had the authority to perform such an investigation, and called it a “wasted effort.” “I really suggest we put this to bed,” he said. The resolution failed, in a 2–1 vote. (One of the two Republican leaders was absent, though even a tie would have stopped the audit.)
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Cert. Petition Filed in Supreme Court in Pennsylvania Election Case (Bognet) Proposes Resolution of Independent State Legislature Doctrine After Election Is Over<https://electionlawblog.org/?p=119109>
Posted on November 27, 2020 5:12 pm<https://electionlawblog.org/?p=119109> by Rick Hasen<https://electionlawblog.org/?author=3>

From the cert petition<https://www.supremecourt.gov/DocketPDF/20/20-740/161431/20201120145219303_2020-11-20%20Bognet%20Cert%20Petition.pdf>:

This case presents critically important issues about the conduct of federal elections that have split the lower courts. Do State courts and executive
officials have authority to alter legislatively established election rules, despite the U.S. Constitution’s vesting of authority to set the rules for
federal elections in State legislatures? If State courts or executive officials do alter election rules, who has standing to challenge those changes in federal court? And if State courts and executive officials change the rules on the eve of an election (or even after voting has started), should federal courts step aside and let those changes stand regardless of their constitutionality?

These issues were presented in an emergency posture repeatedly in the recently concluded election, including to this Court. See, e.g., Moore v. Circosta, No. 20A72, 2020 WL 6305036 (U.S. Oct. 28, 2020); Republican Party of Pa. v. Boockvar, No. 20-542, 2020 WL 6304626 (U.S. Oct. 28, 2020). And they are highly likely to recur in the future, particularly without a clear directive from this Court. This case presents an opportunity for the Court to resolve these issues in an orderly manner on full briefing and argument, rather than on the “shadow docket” under the time pressures of an ongoing election.

The conflict and confusion in the lower courts regarding the issues presented is exemplified by the disparate treatment given to claims arising from attempted extensions of legislatively established deadlines for receipt of absentee ballots in Pennsylvania, North Carolina, and Minnesota.
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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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Irvine, CA 92697-8000
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http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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