[EL] ELB News and Commentary 9/25/20

[Rick Hasen]

“Trump Again Sows Doubt About Election as G.O.P. Scrambles to Assure Voters”<https://electionlawblog.org/?p=115723>
Posted on September 24, 2020 8:55 pm<https://electionlawblog.org/?p=115723> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/24/us/politics/trump-republicans-election-transition.html>

President Trump declined for a second straight day to commit to a peaceful transfer of power if he lost the election, repeating baseless assertions that the voting would be a “big scam,” even as leading Republicans scrambled to assure the public that their party would respect the Constitution.

“We want to make sure that the election is honest, and I’m not sure that it can be,” Mr. Trump told reporters on Thursday before leaving the White House for North Carolina.

The president doubled down on his stance just hours after prominent Republicans made it clear that they were committed to the orderly transfer of power, without directly rebuking him. “The winner of the November 3rd election will be inaugurated on January 20th,” Mitch McConnell, the Senate majority leader, wrote on Twitter<https://twitter.com/senatemajldr/status/1309126971058794499> early Thursday. “There will be an orderly transition just as there has been every four years since 1792.”

Democrats were far less restrained, comparing Mr. Trump’s comments to those of an authoritarian leader and warning Americans to take his stance seriously.

“You are not in North Korea; you are not in Turkey; you are not in Russia, Mr. President, and by the way, you are not in Saudi Arabia,” House Speaker Nancy Pelosi said. “You are in the United States of America. It is a democracy, so why don’t you just try for a moment to honor your oath of office to the Constitution of the United States?”

Chris Edelson, an American University professor who has studied the expansion of presidential power during national emergencies, said Mr. Trump’s comments represented a unique threat to a central pillar of democracy. “It’s impossible to underscore how absolutely extraordinary this situation is — there are really no precedents in our country,” he said. “This is a president who has threatened to jail his political opponents. Now he is suggesting he would not respect the results of an election. These are serious warning signs.”

Douglas Brinkley, the presidential historian, said, “This may be the most damaging thing he has ever done to American democracy.”…

Ben Ginsberg, a longtime Republican elections lawyer who retired last month, said Republican senators — even those who have sought to distance themselves from Mr. Trump — are limited in how much they can criticize a president who remains overwhelmingly popular with the party’s base.

His leverage over the rank and file is even greater as he prepares to announce a Supreme Court nominee nearly all of them will support, Mr. Ginsberg said.

“The president’s comments about the peaceful transfer of power, combined with his need for the ninth justice to carry out his election plans, puts Republican senators on the horns of a dilemma,” Mr. Ginsberg said….

Still, the debate exposed a divide in the party that the flurry of G.O.P. statements — and attacks on Democrats — could not obscure, and Mr. Trump’s comments caused deep uneasiness among some stalwarts of the besieged Republican establishment.

“This isn’t the typical Trump outrage that comes and goes,” said Brendan Buck, a former top adviser to House Speaker Paul Ryan, who stepped down in 2019. “Senators are stating their principle here because it’s obvious to everyone that he is, in fact, planning to dispute the results if he loses, no matter how lopsided. Calling him names isn’t going to stop him, but they are trying to save themselves some trouble later by making clear they’re not going to flirt with crazy conspiracies that make a mockery of our democracy.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>


“Facebook Takes Down Networks Linked to Russian Disinformation”<https://electionlawblog.org/?p=115721>
Posted on September 24, 2020 8:51 pm<https://electionlawblog.org/?p=115721> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/24/us/politics/facebook-russia-networks.html>

Facebook announced on Thursday that it was taking down three disinformation networks that it said were linked to Russia’s military and intelligence agencies, and to the Internet Research Agency<https://www.nytimes.com/2015/06/07/magazine/the-agency.html>, which was central to Moscow’s interference<https://www.nytimes.com/2018/02/18/world/europe/russia-troll-factory.html> in the 2016 presidential election.

None of the networks were large, and they operated almost entirely abroad — from Japan to Belarus. But Facebook said it was acting proactively to dismantle infrastructure Russia could use around the Nov. 3 presidential election<https://www.nytimes.com/2020/09/01/technology/facebook-russia-disinformation-election.html>, either in an effort to influence the vote or to dispute its outcome by calling into question the fairness of the balloting.

“We haven’t seen these networks directly target the 2020 election,” Nathaniel Gleicher, the head of security policy for Facebook, said in an interview. “But they are linked to actors associated with election interference in the U.S. in the past, including in the ‘DCLeaks’ in 2016.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s escalating attacks on election prompt fears of a constitutional crisis”<https://electionlawblog.org/?p=115719>
Posted on September 24, 2020 8:47 pm<https://electionlawblog.org/?p=115719> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/trump-election-transition-crisis/2020/09/24/068d2286-fe79-11ea-8d05-9beaaa91c71f_story.html>:

President Trump reiterated Thursday that he may not honor the results should he lose reelection, reaffirming his extraordinary refusal to commit to a peaceful transition of power and prompting election and law enforcement authorities nationwide to prepare for an unprecedented constitutional crisis.

Trump escalated his months-long campaign to undermine the legitimacy of the Nov. 3 election with comments Wednesday that, taken together and at face value, pose his most substantial threat yet to the nation’s history of free and fair elections.

In recent days, the president cast doubt on the integrity of vote totals. He said he might not accept the results if they show him losing to Democratic nominee Joe Biden<https://www.washingtonpost.com/elections/candidates/joe-biden/?itid=lk_inline_manual_5>. He said it was imperative to quickly fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg because the nation’s high court could determine the winner of the election.

And when asked directly whether he would commit to a “peaceful transition of power,” Trump responded, “We’re going to have to see what happens.” He went on to suggest that authorities “get rid of the ballots,” an apparent reference to the huge uptick in votes cast by mail amid the coronavirus<https://www.washingtonpost.com/coronavirus/?itid=lk_inline_manual_8> pandemic, adding that, if they did, “there won’t be a transfer [of power], frankly. There will be a continuation.”

Asked on Sept. 23 if he would commit to a peaceful transfer of power if he loses the election, President Trump said, “We’re going to have to see what happens.” (The Washington Post)

Trump reaffirmed his views Thursday, saying on Fox News Radio that he would agree with a Supreme Court ruling that Biden won the election but that short of a court decision, the vote count would amount to “a horror show” because of fraudulent ballots. There is no evidence of widespread fraud.

Later Thursday, as he left the White House for a campaign rally in North Carolina, Trump reiterated to reporters, “We want to make sure the election is honest, and I’m not sure that it can be.”

Trump’s running commentary about an illegitimate vote reverberated from coast to coast. Many of Trump’s Republican allies in Congress, including Senate Majority Leader Mitch McConnell (R-Ky.), issued perfunctory statements declaring that the winner of the Nov. 3 election would be inaugurated on Jan. 20 — an orderly transition as there traditionally has been in the United States.

Democratic state attorneys general strategized among themselves on what to do if the president refuses to accept the result and said they were most concerned that his drumbeat of unfounded accusations about fraud could undermine public confidence in the election.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“East Texas official arrested for alleged mail-in voter fraud involving 2018 Democratic primary for local seat”<https://electionlawblog.org/?p=115717>
Posted on September 24, 2020 8:41 pm<https://electionlawblog.org/?p=115717> by Rick Hasen<https://electionlawblog.org/?author=3>

Texas Tribune:<https://www.texastribune.org/2020/09/24/texas-gregg-county-voter-fraud/>

An East Texas county commissioner was arrested Thursday on charges that he and three associates committed voter fraud in a 2018 primary election.

A grand jury indicted<https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/Indictments.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=> Shannon Brown, a Democratic Gregg County commissioner whose office is in Kilgore, Marlena Jackson, Charlie Burns and DeWayne Ward, on numerous felony charges in a scheme that allegedly involved falsely claiming voters were disabled in order to obtain absentee ballots.

County election results show<https://results.enr.clarityelections.com/TX/Gregg/74359/193958/Web01/en/summary.html> Brown won a narrow victory in the March Democratic primary — 1,047 votes to his opponent’s 1,042 — with a much greater share of his support coming from absentee ballots. The indictments involve the ballots or applications for ballots of about 38 voters, and most counts accuse Brown and the others of “intentionally [causing] false information to be provided on an application for ballot by mail,” with an application indicating that “the voter was disabled, when in fact the voter was not disabled.”

An investigation into the election was announced<https://www.news-journal.com/news/county/gregg/elected-officials-announce-state-attorney-general-probe-of-gregg-county-mail-in-ballot-complaint/article_3c9c425c-5eb3-11e8-9e94-0be70cf5cf60.html> in May 2018. The Gregg County grand jury issued indictments for 134 total counts against the four, with multiple overlapping charges involving the roughly three dozen voters. The indictments themselves offer little explanation of how the alleged fraud occurred, and do not indicate how many of the 38 successfully cast ballots.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Justice Dept. Discloses Pa. Ballot Inquiry, Prompting Fears of Politicization”<https://electionlawblog.org/?p=115715>
Posted on September 24, 2020 8:35 pm<https://electionlawblog.org/?p=115715> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/24/us/politics/pennsylvania-mail-in-voter-fraud-investigation.html>

The Justice Department on Thursday released details about an investigation into nine discarded mailed-in ballots in Pennsylvania, an unusual step that stoked new fears that President Trump’s political appointees were using the levers of law enforcement to sow doubt about the election.

The U.S. attorney for central Pennsylvania, David J. Freed, announced in a statement<https://www.justice.gov/usao-mdpa/pr/revised-statement-us-attorney-freed-inquiry-reports-potential-issues-mail-ballots> that F.B.I. investigators were examining mail-in ballots from military members in Luzerne County in northeastern Pennsylvania that had been “discarded.” Seven of the nine ballots were cast for Mr. Trump, Mr. Freed said.

In a letter to the Luzerne County Bureau of Elections<https://www.justice.gov/usao-mdpa/pr/letter-luzerne-county-bureau-elections> released on Thursday evening, Mr. Freed said investigators found that the nine ballots had been “improperly opened by your elections staff.” Under Pennsylvania election law, no ballots can be opened until Election Day, even for processing.

Mr. Freed added that the investigation found that “envelopes used for official overseas, military, absentee and mail-in ballot requests are so similar, that the staff believed that adhering to the protocol of preserving envelopes unopened would cause them to miss such ballot requests,” and had been opening envelopes.

Mr. Freed said he was taking the rare step of releasing details about the investigation because of “the limited amount of time before the general election and the vital public importance of these issues.”

A spokeswoman for the Justice Department did not respond to an email seeking comment. The Luzerne County district attorney said it had<https://pbs.twimg.com/media/EitYpHaWsAMg4uY.jpg> “consulted with the United States attorney’s office” after a county administrator notified them of “issues” with a ballot.

The announcement came as Mr. Trump refused to commit<https://www.nytimes.com/2020/09/23/us/politics/trump-power-transfer-2020-election.html> to accepting the results of the election and as voters around the country began casting ballots by mail and in early voting.

Election experts said the announcement was highly irregular. Justice Department policy<https://www.justice.gov/criminal/file/1029066/download#page=21> calls for keeping voter fraud investigations under wraps to avoid affecting the election outcome, and the experts said it was almost unheard-of for the department to provide an update on the case and disclose the name of the candidate for whom the ballots had been cast….
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Department of Justice<https://electionlawblog.org/?cat=26>


Minnesota: “Competitive congressional election delayed after death of third-party candidate”<https://electionlawblog.org/?p=115713>
Posted on September 24, 2020 8:07 pm<https://electionlawblog.org/?p=115713> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/09/24/minnesota-congressional-election-delayed-421317>

The death of a third-party candidate running against freshman Democratic Rep. Angie Craig has triggered the postponement of this year’s vote and scheduleda special election next year in her Twin Cities-area district.

The Minnesota secretary of state’s office confirmed Thursday the death of Adam Weeks, a farmer running under the Legal Marijuana Now party, and that the seat would become vacant at the start of the next term. State law requires that the November election be delayed and a a special election be held on the second Tuesday in February if a major party nominee dies within 79 days of Election Day. Early voting began in Minnesota last week.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Battles Over Voting Rules Fuel Concern About Postelection Fights”<https://electionlawblog.org/?p=115711>
Posted on September 24, 2020 7:55 pm<https://electionlawblog.org/?p=115711> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/24/us/politics/trump-election-voting-rights.html?smid=em-share>

Even before his comments over the past several days, the confusion surrounding how ballots should be cast and counted had reached a level rarely before seen.

In Wisconsin and Pennsylvania, two states pivotal to the outcome of the presidential race between Mr. Trump and Joseph R. Biden Jr., the Democratic nominee, there are legal fights underway that could affect when voters have to mail in their ballots. In Pennsylvania and Ohio, there are lawsuits about where voters might be able to drop off their ballots.

In those states and others, the very means by which the election will be conducted is still being hashed out through legislation, executive actions and consent decrees, as well as litigation.

In Michigan, legislation is pending concerning whether voters will have the ability to fix any problems with their mail-in ballots. In North Carolina, elections officials signed an agreement to extend the deadline for receiving mail ballots by six days, and Republicans immediately pledged to try to overturn it<https://www.nytimes.com/live/2020/09/24/us/trump-vs-biden-election#2-republicans-resign-from-the-north-carolina-elections-board-over-a-mail-ballot-extension>.

The problem has been exacerbated by the options that states have sought to provide to make voting safer and easier amid the pandemic, changes that have often been met with a flood of lawsuits.

“A whole bunch of Americans are going to have a different process than they may be used to,” said Justin Levitt, a professor at Loyola Law School who oversaw voting rights in the Obama administration as a deputy assistant attorney general. Mr. Levitt has been tracking pandemic-related election law cases<https://healthyelections-case-tracker.stanford.edu/> across the country, and he said that “any change is inevitably going to lead to disruption.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Michigan lawmakers give clerks more time to process ballots”<https://electionlawblog.org/?p=115709>
Posted on September 24, 2020 7:50 pm<https://electionlawblog.org/?p=115709> by Rick Hasen<https://electionlawblog.org/?author=3>

Very good bipartisan news<https://www.detroitnews.com/story/news/local/michigan/2020/09/24/michigan-lawmakers-ok-bill-adding-time-process-absentee-ballots/3524447001/>:

The Michigan Legislature gave final approvals Thursday to a bill that would give local clerks 10 hours extra before the election to begin processing absentee ballots, a nod to the expected uptick in absentee voting in the general election.

The bill also changed protocol for signature mismatches on absentee ballots, increased security around ballot boxes, and allowed for shifts of workers on the absent voter counting board the day of the election.

The legislation passed 94-11 through the House and was concurred on by the Senate 35-2. The bill is headed to Gov. Gretchen Whitmer’s desk next.

Nearly 2.4 million voters had requested absentee ballots as of Tuesday, building toward what’s expected to be record mail-in participation during the coronavirus pandemic.

The bill, introduced by Sen. Ruth Johnson, R-Holly, will help clerks to better meet the unique demands of the Nov. 3 election, she said.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


“Actually, We Will Know a Lot on Election Night”<https://electionlawblog.org/?p=115707>
Posted on September 24, 2020 5:41 pm<https://electionlawblog.org/?p=115707> by Rick Hasen<https://electionlawblog.org/?author=3>

Nate Persily and Charles Stewart in the WSJ:<https://www.wsj.com/articles/actually-we-will-know-a-lot-on-election-night-11600959867?st=gq0koh7g1iyxinx&reflink=article_copyURL_share>

Pundits are warning that election night in November may turn into election week or even election month. Amid the pandemic, election officials are bracing for a flood of ballots sent by mail, and Americans may need to wait an unusually long time to know for sure who won and by how much. But that doesn’t mean we will be in the dark about the next president until all the official state counts are completed. In all likelihood, we will have a good idea on election night, or within a few days after, of whether Donald Trump or Joe Biden won the White House.

Many observers expect the states to take an inordinately long time to count votes this November because, according to a recent nationwide survey<https://covidstates.net/COVID19%20CONSORTIUM%20REPORT%207%20VBM%20JULY%202020.pdf>, more than 50% of voters may end up casting mail ballots this year, up from 20% in 2016. Thirteen states, including the swing states of Michigan, New Hampshire, Pennsylvania and Wisconsin, wait until election day<https://www.ncsl.org/research/elections-and-campaigns/vopp-table-16-when-absentee-mail-ballot-processing-and-counting-can-begin.aspx> to “process” their mail ballots. (Processing is the act of verifying the identity of the voter who returned the mail ballot, usually by matching the signature on the ballot to one on file; the actual counting comes later.) If the election comes down to mail ballots cast in those states, waiting for them to verify the ballots and count the votes could push the election into overtime.

Because more Democrats than Republicans have requested mail ballots this year, the vote totals on Election Day—reflecting all in-person voting but not all mail ballots—could paint a misleading picture about who won. Josh Mendelsohn, CEO of the Democratic data firm Hawkfish, has warned of an election-day “red mirage”<https://www.axios.com/bloomberg-group-trump-election-night-scenarios-a554e8f5-9702-437e-ae75-d2be478d42bb.html> of victory for Mr. Trump, which will be replaced in short order by a “blue shift” as the outstanding, heavily Democratic mail ballots are counted. Such a dramatic change from the election-night result could lead to baseless Republican charges of fraud and cries that the election was rigged, which could spark dangerous political unrest.

These nightmare scenarios ignore several key facts, however. Most states begin processing their ballots<https://www.ncsl.org/research/elections-and-campaigns/vopp-table-16-when-absentee-mail-ballot-processing-and-counting-can-begin.aspx> before election day, and almost all begin putting them through scanners before the polls close. Many states intermingle sent-by-mail and election-day ballots at the polling places, where they are scanned together, so that when the precinct count is released, it contains both in-person and mail ballots. In such states—which include such battlegrounds as New Hampshire and most of Wisconsin—the polling place counts may be released a few hours later than they might in another year, but not days later. More generally, local jurisdictions have been preparing all summer for a surge in mail ballots; most will be counted on election day in parallel with the day’s in-person ballots, so that the results of many ballots cast in advance can be announced early on election night.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Dan Forest asks Trump administration to investigate NC Democrats over mail-in voting”<https://electionlawblog.org/?p=115705>
Posted on September 24, 2020 4:33 pm<https://electionlawblog.org/?p=115705> by Rick Hasen<https://electionlawblog.org/?author=3>

News and Observer:<https://www.newsobserver.com/news/politics-government/article245982530.html>

President Donald Trump’s administration should launch an investigation into a proposed change in North Carolina’s vote-by-mail rules, N.C. Lt. Gov. Dan Forest said Thursday.

Forest, a Republican like Trump, wrote a letter <https://files.nc.gov/ltgov/documents/files/Signed-Letter-to-AG-Barr-9.24.2020.pdf> to U.S. Attorney General William Barr asking him to look into potential changes the N.C. State Board of Elections voted on earlier this week, to settle a lawsuit against the state.

Barr, a close Trump ally, has frequently been accused of politicizing<https://www.cnn.com/2020/03/05/politics/judge-mueller-report-barr/index.html> the U.S. Department of Justice to help Trump’s re-election chances<https://www.bloomberg.com/news/articles/2020-09-18/barr-goes-all-in-for-trump-campaign-themes-weeks-before-election>. Forest’s letter makes similar accusations, but against Democrats in North Carolina.

He said N.C. Attorney General Josh Stein, who is a Democrat,worked with the Democrat-led elections board and the liberal-leaning challengers in the lawsuit “to enact, without the consent of the legislature, wholesale changes to the absentee ballot laws of North Carolina.”…

N.C. Senate leader Phil Berger, a Republican from Rockingham County, said Democrats supported the lawsuit settlement because they “have repeatedly tried to enact these policies for months. They lost when the legislature rejected them almost unanimously; they lost when a federal judge rejected them; they lost when a state court rejected them..”

Stein strongly rejected such accusations, saying in a written statement to The News & Observer that “I am committed to ensuring that all eligible voters in North Carolina are confident in the knowledge that they can vote easily and safely by mail or in person — and that the candidate who wins the most votes will prevail.”

He accused Republicans of trying to create confusion and mistrust in the elections.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Sounds Like Election Administrator Error Rather Than Malfeasance in Early Reporting on Those 9 Ballots in PA<https://electionlawblog.org/?p=115703>
Posted on September 24, 2020 4:30 pm<https://electionlawblog.org/?p=115703> by Rick Hasen<https://electionlawblog.org/?author=3>

New DOJ letter:<https://www.justice.gov/usao-mdpa/pr/letter-luzerne-county-bureau-elections>

In addition to the military ballots and envelopes that were discarded and recovered as detailed above, investigators recovered four (4) apparently official, bar-coded, absentee ballot envelopes that were empty. Two (2) of those envelopes had the completed attestations and signatures on the reverse side.  One (1) envelope with a handwritten return address was blank on the reverse side.  The fourth empty envelope contains basic location information and the words “affirmation enclosed” on the reverse side.  The majority of the recovered materials were found in an outside dumpster.

As you know, the appropriate method for processing received military ballots is to securely store the ballot, unopened, until such time as ballot pre-canvassing can begin, which is in no event earlier than 7:00 a.m. on Election Day.  Opening a military or overseas ballot, or an absentee or mail-in ballot for that matter, violates the controlling statutes and is contrary to Pennsylvania Department of State guidance.  The preliminary findings of this inquiry are troubling and the Luzerne County Bureau of Elections must comply with all applicable state and federal election laws and guidance to ensure that all votes—regardless of party—are counted to ensure an accurate election count.   Even though your staff has made some attempts to reconstitute certain of the improperly opened ballots, there is no guarantee that any of these votes will be counted in the general election.  In addition, our investigation has revealed that all or nearly all envelopes received in the elections office were opened as a matter of course.  It was explained to investigators the envelopes used for official overseas, military, absentee and mail-in ballot requests are so similar, that the staff believed that adhering to the protocol of preserving envelopes unopened would cause them to miss such ballot requests.  Our interviews further revealed that this issue was a problem in the primary election–therefore a known issue–and that the problem has not been corrected.
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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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