[EL] ELB News and Commentary 9/26/20

[Rick Hasen]

“Don’t fall for claims of voter fraud. Error is more likely the case, and errors don’t swing elections”<https://electionlawblog.org/?p=115768>
Posted on September 25, 2020 5:20 pm<https://electionlawblog.org/?p=115768> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece <https://www.latimes.com/opinion/story/2020-09-25/absentee-ballots-luzerne-county-pennsylvania-william-barr-department-of-justice> for the LA Times. It begins:

Let’s admit this now: We are not going to have a perfect election in November. We never have perfect elections.

There will be reports of ballots sent to voters that end up in the trash or in a ditch<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.cbs42.com%2Fnews%2Fbox-of-mail-absentee-ballots-found-in-wisconsin-ditch%2F&data=02%7C01%7CSusan.Brenneman%40latimes.com%7Cab923265978a476c1b8608d86195f0d4%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637366643911083774&sdata=%2FGC1O7JYJkW97IojHGLSla3pxauZyvyLFwkBRJZojyE%3D&reserved=0>. We may hear about a box of ballots never delivered to voters or election officials by the post office. There may be isolated instances of fraud, or of things that initially look like fraud but turn out to be election administrator error.

This doesn’t mean we won’t have a fair election overall, and we should not allow cynical political operatives to parlay small-bore errors into a full-scale attack on the integrity of the November vote.

The controversy that bubbled up on Thursday over nine mishandled ballots in Luzerne County, Pa., illustrates the danger ahead. Even before<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.cnn.com%2F2020%2F09%2F24%2Fpolitics%2Fdoj-trump-ballots-pennsylvania%2Findex.html&data=02%7C01%7CSusan.Brenneman%40latimes.com%7Cab923265978a476c1b8608d86195f0d4%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637366643911083774&sdata=ZlfsRFl8lI%2Fi25Yv1U9gAHYIqa76f2gbswOYOdVAXdg%3D&reserved=0> the Department of Justice issued its announcement, President Trump and his team were complaining that mail-in ballots from military voters cast for him were being thrown into the trash, a claim fitting into his narrative — unsupported by the facts<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.nytimes.com%2F2020%2F08%2F19%2Fopinion%2Ftrump-usps-mail-voting.html&data=02%7C01%7CSusan.Brenneman%40latimes.com%7Cab923265978a476c1b8608d86195f0d4%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637366643911093732&sdata=tfFsyAezc%2F0azcWeICLWsU5spEfyaH7rVG9kphqX5oA%3D&reserved=0> — that massive voter fraud will be used to take a November victory away from him. ABC News reported<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fabcnews.go.com%2FPolitics%2Fbarr-briefed-trump-investigation-discarded-pennsylvania-ballots%2Fstory%3Fid%3D73244344&data=02%7C01%7CSusan.Brenneman%40latimes.com%7C65b3674409c74ce4047b08d861a11a34%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637366692463343290&sdata=Ba4L7i65TAzKq5iNHiKdlQu9LK3zs9zFT%2BweFRBo2nc%3D&reserved=0> that Atty. Gen. William Barr briefed Trump on the case before it was publicly announced.

The Justice Department bungled the facts with premature announcements. Nine Trump votes were not tossed. That news release was rescinded and replaced: Seven of the ballots had been marked for Trump; two were unopened. Then came yet more information<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.pahomepage.com%2Fwp-content%2Fuploads%2Fsites%2F91%2F2020%2F09%2FPress-Release-County-UMOVA-ballots.pdf&data=02%7C01%7CSusan.Brenneman%40latimes.com%7C65b3674409c74ce4047b08d861a11a34%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637366692463353285&sdata=QqALfn78L7yln9NcXyrB%2Ft7PHy%2FVdspTq0dOa8bgUbQ%3D&reserved=0>: A memo from Luzerne County that suggested there was no criminal activity related to the ballots, just administrative error. A temporary contract election worker on the job for only three days may have believed the envelopes contained applications for absentee ballots, not votes. The worker was fired when the error was discovered.

The clarifications did not stop a flood of conservative media stories blowing up the situation as some kind of evidence of a massive conspiracy to throw the election. The Luzerne County story is troubling, but not because it showed deliberate tampering. Instead it showed how political operatives — this time acting through the Justice Department — could try to give mistakes the aura of a stolen election for political gain. Whatever one thinks about the department announcing an ongoing political investigation in the midst of the election season (which goes against the DOJ’s own standards and practices), there is no non-political reason for releasing information about how the ballots were marked. This was an in-kind contribution to the Trump campaign by the Justice Department….
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>, Election Meltdown<https://electionlawblog.org/?cat=127>


Federal District Court Requires Texas, in Light of the Pandemic, to Retain Straight Ticket Voting Option for November<https://electionlawblog.org/?p=115766>
Posted on September 25, 2020 4:11 pm<https://electionlawblog.org/?p=115766> by Rick Hasen<https://electionlawblog.org/?author=3>

The court’s opinion is here<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/08/Texas-Straight-Ticket_ORDER.pdf> and no doubt there will be an appeal.

There’s a discussion of whether this ruling comes too late under the Purcell Principle near the end of the opinion, but it does not get into the nuts and bolts of what is feasible. I look forward to hearing if and how Texas could implement this ruling at this stage of the process.
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Posted in voting<https://electionlawblog.org/?cat=31>


Must-Read by Fredreka Schouten: “She marched in Selma as a young girl. Now she’s seeing history repeat on voting rights”<https://electionlawblog.org/?p=115764>
Posted on September 25, 2020 3:29 pm<https://electionlawblog.org/?p=115764> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/09/25/politics/voting-rights-act-history-election-2020/index.html>:

Joanne Bland was an 11-year-old schoolgirl in Selma, Alabama<https://www.cnn.com/2013/09/15/us/1965-selma-to-montgomery-march-fast-facts/index.html>, when she marched into history, joining hundreds of activists on the Edmund Pettus Bridge for a demonstration that turned into one of the bloodiest confrontations of the civil rights movement<https://www.cnn.com/2020/06/15/us/civil-rights-protests-then-now/index.html>.

Baton-wielding state troopers and horse-mountedmembers of the sheriff’s posse, plunged into the peaceful crowd that day in March 1965, breaking bones and cracking skulls. Bland’s 14-year-old sister Linda, standing not far behind march leaders John Lewis<https://www.cnn.com/2020/07/26/politics/john-lewis-memorial-edmund-pettus-bridge/index.html> and Hosea Williams, was struck in the face and the back of the head.

“It was horrible,” Bland recalls now. “There was this one lady, I don’t know if the horse ran over her or if she fell, but all these years later, I can still hear the sound of her head hitting that pavement.”

The march — known as Bloody Sunday — so shocked the nation that it helped mobilize Congress to pass the Voting Rights Act. That landmark legislation finally dismantled the Jim Crow-era laws that relied on obscure civics tests, discriminatory poll taxes and violence to deny full citizenship to all Americans.

But today, 55 years later, Bland feels as though she’s re-living parts of the past as she surveys a country riven by racial tension, where Black men and women die too often at the hands of police, and in which states press ahead with purging voters from their rolls and enforcing strict voter identification laws — even as a once-in-a-century pandemic stalks their citizens.

“Sometimes I wake up and I think we are paralleling the 60s all over again,” Bland said in an interview from her home in Selma, where she leads tours of the city’s civil rights landmarks. “The laws that they passed to prevent African Americans from voting were insurmountable, and states could make up their own rules. That’s pretty much where this is going now.”
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“Federal judge sidesteps ruling on whether multiple drop boxes for ballots are needed in Ohio counties”<https://electionlawblog.org/?p=115762>
Posted on September 25, 2020 2:49 pm<https://electionlawblog.org/?p=115762> by Rick Hasen<https://electionlawblog.org/?author=3>

Cleveland.com<https://www.cleveland.com/politics/2020/09/federal-judge-sidesteps-ruling-on-whether-multiple-drop-boxes-for-ballots-are-needed-in-ohio-counties.html>:

A federal judge sidestepped a ruling Friday on whether to place multiple drop boxes in counties across Ohio, saying that he instead will wait to see how a state appeals court handles the matter.

U.S. District Judge Dan Polster issued a seven-page decision that criticized Ohio Secretary of State Frank LaRose and the state legislature for failing to come up with a solution sooner.

He ordered LaRose to work with the Cuyahoga County Board of Elections to alleviate “the looming crisis for voters who plan to personally deliver their ballots for the November 3 election rather than returning them by mail.”…

n his ruling, Polster said that he agrees with Frye’s conclusion that “nothing in state law prohibits off-site drop boxes or off-site delivery of ballots to board employees.”

He said that if appellate courts uphold Frye’s action, the issue is moot. He said he would hold his decision in abeyance until then.

“This is a problem that can and should be solved by the Secretary of State,” Polster said. “It is his job to work with each board to address any local issue that significantly impacts voters in that county being able to cast their ballots.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Republican party sues to stop late ballot ruling”<https://electionlawblog.org/?p=115760>
Posted on September 25, 2020 2:15 pm<https://electionlawblog.org/?p=115760> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News <https://www.detroitnews.com/story/news/politics/2020/09/25/michigan-national-republican-parties-sue-stop-late-ballot-ruling/3531322001/> reports.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Federal appeals court won’t hear Alaska absentee-ballot lawsuit before November election”<https://electionlawblog.org/?p=115758>
Posted on September 25, 2020 2:06 pm<https://electionlawblog.org/?p=115758> by Rick Hasen<https://electionlawblog.org/?author=3>

ADN:<https://www.adn.com/politics/2020/09/24/federal-appeals-court-wont-hear-alaska-absentee-ballot-lawsuit-before-november-election/>

The federal 9th Circuit Court of Appeals will not hear an Alaska elections lawsuit before the Nov. 3 general election, likely eliminating any chance that a judge will require the state to send absentee ballot request forms to all voters ahead of the election.

Any Alaskan can vote absentee by mail, but they must request permission first. The state has an online application form available<https://absenteeballotapplication.alaska.gov/>.

The state sent paper forms to Alaskans 65 and older, but the Disability Law Center of Alaska and several other plaintiffs sued<https://www.adn.com/politics/2020/07/17/lawsuit-says-alaskas-absentee-ballot-application-process-is-discriminatory/>, arguing that the age limit was discriminatory. They sought an order requiring the state to send paper forms to all Alaskans.

That request was denied by an Alaska district court judge<https://www.adn.com/politics/2020/09/04/federal-judge-sides-with-state-in-dispute-over-mailing-absentee-ballot-applications-only-to-older-alaskans/>, and on Tuesday, the federal appeals court also denied a request for an emergency order<https://www.documentcloud.org/documents/7216623-9th-Circuit-Emergency-Motion-Denied.html> ahead of the election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Mark Braden, Jim Bopp, and an Anonymous Republican Election Lawyer Say How Trump Would Be Removed If He Lost and Refused to Leave Office<https://electionlawblog.org/?p=115756>
Posted on September 25, 2020 1:16 pm<https://electionlawblog.org/?p=115756> by Rick Hasen<https://electionlawblog.org/?author=3>

Key quotes<https://thehill.com/homenews/campaign/518264-republican-lawyers-brush-off-trumps-election-comments> from the Hill:

“The Electoral College votes and those are sent to Congress and they declare a winner and then the president becomes president on Jan. 20,” said Mark Braden, an elections lawyer who spent 10 years as chief counsel for the Republican National Committee. “And guess what? The new president is commander in chief, so everyone in the executive branch works for him. If they have to carry the president out in a chair, they will, because if Congress reviews the electoral votes and decides that Biden wins, then it doesn’t matter what Trump thinks or does. The government will be run by Biden.”…

Conservative elections attorney Jim Bopp told The Hill that it would be as simple as getting a judge to issue a “quo warranto” common law action, which effectively determines that a one-time guest has become a trespasser.

“It’s totally absurd to discuss, but you would just get a court order to have him removed,” Bopp said. “It’s that simple. If a person violates the court order, they’re in contempt of court and subject to civil or criminal contempt, so there’s a quick and easy legal remedy in case this preposterous event takes place.”…

“No doubt the Trump base will stick with him, and will forever believe that Pelosi, Schumer, Shifty Schiff and Hunter Biden conspired with China and Russia to flood the American electoral system with phony ballots that swung the election to Biden,” said one Republican elections lawyer who requested anonymity to speak candidly.

“But everyone in official Washington will abandon him. Pence, the entire cabinet, the RNC, every GOP senator, all but maybe a handful of GOP representatives, all of his political appointees… Most lawyers will refuse to represent him – including government lawyers who will resign before advancing his positions in court. The other two branches of government will put an end to this… The judicial system in particular will have zero patience for this and its destabilizing effect on public order.  And Trump himself does not want to be frog-marched out of the White House in handcuffs — like a dog — so he’ll eventually go too. With a huge stink, but not an ounce of fight.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>


Temporary Contract Election Worker Worked Only 3 Days Before Apparent Mistake in Discarding That Handful of Pa Military Ballots<https://electionlawblog.org/?p=115754>
Posted on September 25, 2020 12:46 pm<https://electionlawblog.org/?p=115754> by Rick Hasen<https://electionlawblog.org/?author=3>

Not fraud, incompetence.<https://www.pahomepage.com/wp-content/uploads/sites/91/2020/09/Press-Release-County-UMOVA-ballots.pdf>

(Keep this handy.)
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“At Pentagon, Fears Grow That Trump Will Pull Military Into Election Unrest”<https://electionlawblog.org/?p=115752>
Posted on September 25, 2020 11:44 am<https://electionlawblog.org/?p=115752> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/25/us/politics/trump-military-election.html#click=https://t.co/1wOaelpR1f>

Senior Pentagon leaders have a lot to worry about — Afghanistan, Russia, Iraq, Syria, Iran, China, Somalia, the Korean Peninsula. But chief among those concerns is whether their commander in chief might order American troops into any chaos around the coming elections.

President Trump gave officials no solace on Wednesday and Thursday when he again refused to commit to a peaceful transfer of power<https://www.nytimes.com/2020/09/23/us/politics/trump-power-transfer-2020-election.html> no matter who wins the election, and on Thursday, he doubled down by saying he was not sure the election could be “honest.” His hedging, along with his expressed desire in June to invoke the 1807 Insurrection Act<https://www.nytimes.com/article/insurrection-act.html> to send active-duty troops onto American streets to quell protests over the killing of George Floyd<https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html>, has incited deep anxiety among senior military and Defense Department leaders, who insist they will do all they can to keep the armed forces out of the elections.

“I believe deeply in the principle of an apolitical U.S. military,” General Mark A. Milley, the chairman of the Joint Chiefs of Staff, said in written answers to questions from House lawmakers released last month. “In the event of a dispute over some aspect of the elections, by law, U.S. courts and the U.S. Congress are required to resolve any disputes, not the U.S. military. I foresee no role for the U.S. armed forces in this process.”

But that has not stopped an intensifying debate in the military about its role should a disputed election lead to civil unrest.

On Aug. 11, John Nagl and Paul Yingling, both retired Army officers and Iraq war veterans, published an open letter<https://www.defenseone.com/ideas/2020/08/all-enemies-foreign-and-domestic-open-letter-gen-milley/167625/> to General Milley on the website Defense One. “In a few months’ time, you may have to choose between defying a lawless president or betraying your constitutional oath,” they wrote. “If Donald Trump refuses to leave office at the expiration of his constitutional term, the United States military must remove him by force, and you must give that order.”

Pentagon officials swiftly said such an outcome was preposterous. Under no circumstances, they said, would the chairman of the Joint Chiefs of Staff send Navy SEALs or Marines to haul Mr. Trump out of the White House. If necessary, such a task, Defense Department officials said, would fall to U.S. Marshals or the Secret Service. The military, by law, the officials said, takes a vow to the Constitution, not to the president, and that vow means that the commander in chief of the military is whoever is sworn in at 12:01 p.m. on Inauguration Day.

But senior leaders at the Pentagon, speaking on the condition of anonymity, acknowledged that they were talking among themselves about what to do if Mr. Trump, who will still be president from Election Day to Inauguration Day, invokes the Insurrection Act and tries to send troops into the streets, as he repeatedly threatened to do during the protests against police brutality and systemic racism. Both General Milley and Defense Secretary Mark T. Esper opposed the move then, and Mr. Trump backed down.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Barr briefed Trump on investigation into discarded Pennsylvania ballots”<https://electionlawblog.org/?p=115750>
Posted on September 25, 2020 11:33 am<https://electionlawblog.org/?p=115750> by Rick Hasen<https://electionlawblog.org/?author=3>

ABC News:<https://abcnews.go.com/Politics/barr-briefed-trump-investigation-discarded-pennsylvania-ballots/story?id=73244344>

A Justice Department official told ABC News Friday that Attorney General William Barr personally briefed President Donald Trump<https://abcnews.go.com/alerts/donald-trump> about the DOJ’s investigation into a small number of ballots in Pennsylvania that were found to be discarded, prior to the information being made public by a U.S. attorney’s office Thursday afternoon.

President Trump went on to first reveal the investigation in an interview<http://https/radio.foxnews.com/2020/09/24/president-donald-trump-on-the-brian-kilmeade-show-9-24-20/> with Fox News Radio, where he, without evidence, argued that it bolsters his baseless claims of widespread fraud in mail-in voting.

“They were Trump ballots — eight ballots in an office yesterday in — but in a certain state and they were — they had Trump written on it, and they were thrown in a garbage can. This is what’s going to happen,” Trump said in the interview. “This is what’s going to happen, and we’re investigating that.”

But a press release from the U.S. Attorney’s Office in the Middle District of Pennsylvania, which announced the investigation in a press release later in the day, made no explicit mention of “fraud.” The office said it “began an inquiry into reports of potential issues with a small number of mail-in ballots at the Luzerne County Board of Elections,” and discovered nine ballots in a dumpster which were cast for Trump.

The office later corrected that number to seven and said two others were resealed inside their proper envelope. The investigation remains ongoing, but the U.S. attorney’s office in a letter to the Luzerne County Board of Elections raised the specter that the improperly opened envelopes could possibly be the result of an administrative error.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Trump Got a ‘Kick Out of’ the Election Fears He’s Stoked. Inside the DOJ, There’s Some Panic.”<https://electionlawblog.org/?p=115748>
Posted on September 25, 2020 10:57 am<https://electionlawblog.org/?p=115748> by Rick Hasen<https://electionlawblog.org/?author=3>

Daily Beast:<https://www.thedailybeast.com/trump-got-a-kick-out-of-the-election-fears-hes-stoked-inside-the-doj-theres-some-panic>

To horrified voters, onlookers, and the Democratic opposition, it was another clear instance of the sitting president openly telegraphing his plans to seize power, something some administration officials fear will soon take form within the federal government<https://www.thedailybeast.com/trumps-justice-department-threatened-melanias-former-senior-adviser-stephanie-winton-wolkoff-documents-show> and among major party organs.

But to Trump, it was… funny as hell.

According to two people familiar with the matter, hours after the president stepped away from the cameras, Trump continued following the fallout in the press, including on cable news, and began privately remarking how amusing it was that his answer was making media and liberal heads explode, and also predictably dominating TV coverage.

“He seemed to get a real kick out of it,” one of the sources said, adding that the president seemed to relish making the press, in Trump’s words, “go crazy” over his non-commitment to democratic norms and procedure. “[The president] wasn’t going to be playing by their rules on this just to make them feel comfortable.”…

According to a Justice Department prosecutor, there is internal concernin some department circles that Attorney General William Barr will join post-election lawsuits on behalf of the Trump campaign or its allies. The prosecutor had no inside information about this, and described it instead as an expectation amongst some Justice Department personnel who consider Barr dangerous.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Witness mandate vex some new mail-in voters in key states<https://electionlawblog.org/?p=115746>
Posted on September 25, 2020 10:05 am<https://electionlawblog.org/?p=115746> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/article/virus-outbreak-election-2020-wisconsin-state-elections-north-carolina-1ba8c3c27788137ece830160947de248>:

As the pandemic prompts a surge in voting by mail, voters in a handful of states, including the presidential battlegrounds of North Carolina and Wisconsin, are facing a requirement that already is tripping up thousands — the need to have a witness sign their ballot envelope.

A lack of a witness signature or other witness information has emerged as the leading cause of ballots being set aside before being counted in North Carolina, with problems disproportionately affecting Black voters in the state, according to an Associated Press analysis of state election data.

While there is a process for fixing the omissions, voting rights advocates say the numbers are an early warning sign that the extra step is becoming a barrier that could disenfranchise voters — and a potential source of legal battles in a tight race.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“No Voters Need Apply?”<https://electionlawblog.org/?p=115744>
Posted on September 25, 2020 9:12 am<https://electionlawblog.org/?p=115744> by Rick Hasen<https://electionlawblog.org/?author=3>

New Jerry Goldfeder column<https://www.stroock.com/uploads/JerryGoldfederElectionSidebar2-0526.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Presidential Control of Elections”<https://electionlawblog.org/?p=115742>
Posted on September 25, 2020 9:07 am<https://electionlawblog.org/?p=115742> by Rick Hasen<https://electionlawblog.org/?author=3>

Lisa Marshall Manheim has posted this draft of SSRN (forthcoming, Vanderbilt Law Review). Here is the abstract<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3616390>:

In recent decades, Presidents of both political parties have asserted increasingly aggressive forms of influence over the administrative state. During this same period, Congress has expanded the role that the federal government plays in election administration. The convergence of these two trends leads to a troubling but underexamined phenomenon: presidential control of elections. Relying on their official powers, Presidents have the ability to affect the rules that govern elections, including elections meant to check and legitimize presidential powers in the first place. This self-serving arrangement heightens the risk of harms from political entrenchment, subordination of expertise, and disillusionment of the electorate. These harms, in turn, threaten to compromise election outcomes. By extension, they also threaten the electoral connection purportedly underlying the administrative state, and therefore the legitimacy of the work of the modern executive branch.

This Article identifies, defines, and examines this phenomenon — presidential control of elections — and explores its broader implications. It demonstrates that, across the executive branch, this phenomenon manifests differently, and sometimes counterintuitively, in ways that tend to track how Congress has structured the relevant grant of power. Three forms dominate, with Presidents influencing election administration primarily through priority setting (for grants of power running through executive agencies), promotion of gridlock (for grants of power running through independent agencies), and idiosyncratic control (for grants of power running directly to the President). This analysis reveals that congressional efforts at insulation at times can backfire, with Presidents able to exercise particularly problematic forms of control over agencies that Congress designed in blunt ways to resist presidential influence. To that end, this Article proposes that Congress and the courts avoid trying to eliminate or otherwise indiscriminately curb presidential control of elections — a quixotic endeavor that would give rise to its own constitutional hurdles and normative harms. Instead, the legislative and judicial branches should identify specific areas where the President’s control over election administration lacks an effective check, and seek to empower other political actors in those spaces.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“White House Attacks FBI Director For Playing Down Mail Voting Fraud”<https://electionlawblog.org/?p=115740>
Posted on September 25, 2020 8:04 am<https://electionlawblog.org/?p=115740> by Rick Hasen<https://electionlawblog.org/?author=3>

Forbes:<https://www.forbes.com/sites/jackbrewster/2020/09/25/white-house-attacks-fbi-director-for-playing-down-mail-voting-fraud/#21ea81803b48>

White House Chief of Staff Mark Meadows lambasted FBI Director Chris Wray on Friday for correctly playing down the extent of voting fraud and encouraged him to “get involved” with the Trump administration’s efforts to investigate a handful of ballots in Pennsylvania—a probe that has alarmed<https://www.politico.com/news/2020/09/24/doj-announcement-on-pennsylvania-ballot-investigation-baffles-election-experts-421541> election experts.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Quote of the Day<https://electionlawblog.org/?p=115738>
Posted on September 25, 2020 7:45 am<https://electionlawblog.org/?p=115738> by Rick Hasen<https://electionlawblog.org/?author=3>

“Democrats want to scare you away from voting absentee,” Guilfoyle says (in Greg Sargent, Intercepted GOP robocalls expose how Trump hopes to corrupt the election.<https://www.washingtonpost.com/opinions/2020/09/25/intercepted-gop-robocalls-expose-how-trump-hopes-corrupt-election/>)

George Orwell’s estate should sue for copyright infringement.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Republicans in key states are preparing to run out the clock on the election”<https://electionlawblog.org/?p=115736>
Posted on September 25, 2020 7:36 am<https://electionlawblog.org/?p=115736> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/09/24/politics/trump-election-integrity-2020-count/index.html>:

President Donald Trump’s refusal to commit to a peaceful presidential transition<https://www.cnn.com/2020/09/23/politics/trump-election-day-peaceful-transition/index.html> Wednesday comes as Republicans across the country are taking concrete steps that threaten to undermine the integrity of the election, particularly in key battleground states.

Trump’s comments about the transition were only the latest instance where he’s actively sought to sow doubt into the legitimacy of the election. But beyond Trump’s rhetoric, his campaign and Republicans at the state and local level are moving to make it more difficult for voters to cast a ballot, more difficult for states to count votes and more likely that tallies will be challenged in the courts — with a particular focus on mail-in voting, which is being dramatically scaled up this year because of the coronavirus pandemic.

Those efforts, along with Trump’s repeated baseless claims that the election will be rigged, threaten to eat away at the public’s confidence in the outcome, regardless of whether Trump or former Vice President Joe Biden<https://www.cnn.com/election/2020/candidate/biden> is declared the winner. They come amid a contentious fight over filling the Supreme Court seat left vacant by the death of Ruth Bader Ginsburg, in a situation where Trump could be picking the person who decides his electoral fate.

“I spent 38 years as a Republican lawyer going into precincts looking for evidence of fraud. There are, to be sure, isolated cases, but nothing like the widespread fraud that would somehow invalidate an election or cause anyone to doubt the peaceful transfer of power,” Ben Ginsberg, who helped litigate the 2000 election on George W. Bush’s behalf, told CNN’s John King on Thursday. “So what’s different about this is a president of the United States going right at one of the pillars of the democracy without the evidence that you have got to have to make that case.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Special Report: Will your mail ballot count in the U.S. presidential election? It may depend on who’s counting and where”<https://electionlawblog.org/?p=115733>
Posted on September 25, 2020 7:33 am<https://electionlawblog.org/?p=115733> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters reports.<https://www.reuters.com/article/usa-election-absentee-ballots/special-report-will-your-mail-ballot-count-in-the-us-presidential-election-it-may-depend-on-whos-counting-and-where-idUSKCN26G1HP>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


Trump Campaign Tries to Walk Back Trump Comments About Peaceful Transitions of Power to Axios<https://electionlawblog.org/?p=115731>
Posted on September 25, 2020 7:29 am<https://electionlawblog.org/?p=115731> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios:<https://www.axios.com/apocalypse-scenario-trump-transfer-power-aaf43d64-45d3-4c48-b076-c15a5396a0cc.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam&stream=top>

And Trump advisers are ready to challenge the legitimacy of the election results, especially with the expected late wave of Democratic mail ballots. They’re also ready to defend against Democratic lawyers who mount their own election challenges.
·         One Trump campaign source told Axios that their lawyers will litigate where needed, including suing in key states that have changed election laws to allow for an extended period of time to vote or to count ballots.
·         “There are a lot of options if it turns out that the election results aren’t fair and free,” the source said.

The big picture: Trump’s own advisers are providing a reality check: the Constitution makes it clear that, even if Trump chooses denial, if Joe Biden is elected president he will be president on Jan. 20.
·         “Trump can say ‘I don’t concede, I think it’s rigged,’ but he would not be the president,” a Trump legal adviser told Axios.

But legal experts are increasingly worried about how the next president will be chosen if the mechanics for democratic elections fall apart and we face a constitutional crisis.
·         Some lawyers, especially Democrats, don’t like to talk about it because they don’t want to discourage voters who already feel their votes won’t matter — but they’re still gaming out different scenarios so that they are prepared to respond for any event….

Between the lines: Trump’s answer to the question about the peaceful transfer of power — “we’re going to have to see what happens” — is a catchphrase he uses often when he doesn’t want to answer a question.
·         But it would have been an easy answer for any other president, and he forced the GOP to spend Thursday doing cleanup. Nearly every Republican insisted there will be a peaceful transition of power, and how any assertion otherwise would be a rejection of American democracy.
·         Aides to the president argued Thursday that Trump is being misinterpreted, and that he instead was refusing to say whether he’d accept a losing result without a legal fight.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Court Orders Census Counting To Continue Through Oct. 31; Appeal Expected”<https://electionlawblog.org/?p=115729>
Posted on September 25, 2020 7:26 am<https://electionlawblog.org/?p=115729> by Rick Hasen<https://electionlawblog.org/?author=3>

Hansi Lo Wang<https://www.npr.org/2020/09/24/912071784/court-orders-census-counting-to-continue-through-oct-31-appeal-expected> for NPR:

A federal court has ordered the Trump administration to abandon last-minute changes to the 2020 census schedule and extend the time for counting for an additional month.

The preliminary injunction<https://www.documentcloud.org/documents/7217559-National-Urban-League-Sept-24-2020-Order.html> issued Thursday by U.S. District Judge Lucy Koh in the Northern District of California requires the Census Bureau to keep trying to tally the country’s residents through Oct. 31.

The ruling is the latest development in a federal lawsuit over the administration’s decision to shorten the timeline for the national head count. The Justice Department, which did not immediately respond to a request for comment, is expected to appeal<https://twitter.com/hansilowang/status/1308440689894715392?s=20> the order, further complicating what could be the final days of counting for this year’s census.

Koh found that the administration’s truncated census schedule is likely to produce inaccurate numbers about historically undercounted groups, including people of color and immigrants. That, in turn, would harm the constitutional purpose of the count — to redistribute the seats in the House of Representatives among the states based on their latest populations.The judge also found that the challengers in the lawsuit — a coalition of groups led by the National Urban League — are ultimately likely to succeed in the lawsuit by arguing that the administration’s decision was arbitrary and capricious.
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Posted in census litigation<https://electionlawblog.org/?cat=125>


--
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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