[EL] ELB News and Commentary 9/27/20

[Rick Hasen]

Note: Regular blogging will resume Tuesday

The Normally Understated Dan Balz: “Facing possible defeat, Trump threatens the integrity of the election”<https://electionlawblog.org/?p=115825>
Posted on September 27, 2020 7:52 am<https://electionlawblog.org/?p=115825> by Rick Hasen<https://electionlawblog.org/?author=3>

Dan Balz WaPo column:<https://www.washingtonpost.com/politics/facing-possible-defeat-trump-threatens-the-integrity-of-the-election/2020/09/26/9550ecc8-ffa0-11ea-9ceb-061d646d9c67_story.html>

Each week has brought evidence of the damage President Trump has done during his nearly four years in office. According to his own words, he is not finished. This past week brought a renewed warning of a harm he could yet inflict on the integrity of elections.

The president did more than simply refuse to pledge<https://www.washingtonpost.com/politics/trump-transfer-of-power/2020/09/23/be6954d0-fdf0-11ea-b555-4d71a9254f4b_story.html?itid=lk_inline_manual_4> that he would facilitate a peaceful transfer of power if he loses to former vice president Joe Biden<https://www.washingtonpost.com/elections/candidates/joe-biden/?itid=lk_inline_manual_4>, though that in itself was a step no previous president has taken. In doing so, he escalated his ongoing attack on mail-in ballots, seeding the ground to contest the election as rigged or fraudulent if he is not the winner and to propel the country into chaos.

Perhaps what Trump said merely reflected the mind-set of a president who knows he is running behind in his bid for a second term, one more rhetorical flailing to somehow throw the opposition off balance and to distract from the real reasons for Biden’s lead in the polls. But this close to the election, anything Trump does to question the validity of the count should be regarded as serious and treated as such.

Republicans who normally stand by idle when the president says or does something outrageous pushed back <https://www.washingtonpost.com/politics/trump-election-republicans-constitution/2020/09/24/b09e2036-fe79-11ea-9ceb-061d646d9c67_story.html?itid=lk_inline_manual_6> against his words — though, notably, nearly all were careful neither to rebuke nor condemn the president personally. They simply pointed to a long history of peaceful transfers from one presidency to the next and stood up for the Constitution, which is the minimum expected of elected officials who have sworn an oath to defend that document.

The president’s Republican allies in Congress, however, were not necessarily the principal audience for what he said about challenging the vote, nor are they the people whose views he cares about most. Instead, his attempt to discredit mail-in ballots as a way to challenge a possible Biden victory is aimed at rallying his own army of supporters, prepping them to respond, if necessary, with protests or perhaps worse if he challenges vote tabulations — and therefore the results — in the days after the election.

If any people believed that the president was just letting off steam when he declined to pledge a peaceful transfer of power, they can look to something White House Chief of Staff Mark Meadows said after FBI Director Christopher A. Wray had testified before a Senate committee that he knows of no evidence of “any kind of national voter fraud effort in a major election, whether it’s by mail or otherwise.”…

If Trump loses the election and then moves to discredit the results in the face of no evidence of widespread fraud, the country will be confronted with one more crisis of his presidency — one that will have been unfolding in plain view.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115825&title=The%20Normally%20Understated%20Dan%20Balz%3A%20%E2%80%9CFacing%20possible%20defeat%2C%20Trump%20threatens%20the%20integrity%20of%20the%20election%E2%80%9D>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Will Trump’s Presidency Ever End? America Is in Terrible Danger”<https://electionlawblog.org/?p=115823>
Posted on September 27, 2020 7:46 am<https://electionlawblog.org/?p=115823> by Rick Hasen<https://electionlawblog.org/?author=3>

Frank Bruni NYT column<https://www.nytimes.com/2020/09/25/opinion/sunday/trump-election-supreme-court.html>:

On Wednesday The Atlantic rushed its November cover story<https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/> onto the web with an explanatory, almost apocalyptic note by its editor in chief, Jeffrey Goldberg, that some journalism is too important to wait. The article is about the very real chance — essentially confirmed hours later by Trump’s “continuation” comment — that he might contest the election in a manner that keeps him in power regardless of what Americans really want.

“The coronavirus pandemic, a reckless incumbent, a deluge of mail-in ballots, a vandalized Postal Service, a resurgent effort to suppress votes, and a trainload of lawsuits are bearing down on the nation’s creaky electoral machinery,” the article’s author, Barton Gellman, a Pulitzer winner, wrote. “The mechanisms of decision are at meaningful risk of breaking down. Close students of election law and procedure are warning that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result. We have no fail-safe against that calamity.”

Just a few days before those words screeched across the internet, The New Yorker published<https://www.newyorker.com/magazine/2020/09/28/the-legal-fight-awaiting-us-after-the-election> a similar, equally chilling opus by one of its star writers, Jeffrey Toobin, who explained how this election might well degenerate into violence, as Democratic poll watchers clash with Republican poll watchers, and into chaos, as accusations of foul play delay the certification of state vote counts.

Several hours after Gellman’s article appeared, Slate published<https://slate.com/news-and-politics/2020/09/trump-plan-supreme-court-stop-election-vote-count.html> one by Richard Hasen, a professor at the University of California, Irvine, School of Law, with the headline: “I’ve Never Been More Worried About American Democracy Than I Am Right Now.”

Sometimes an overlap of alarms like that reflects groupthink. Sometimes it signals hysteria. This isn’t either of those times….

Those fires are burning hot, with dire implications for what happens after Nov. 3. Sizable camps of people in both parties don’t see any way that the other could win honestly and won’t regard the ensuing government as legitimate. Trump has essentially commanded his followers to take that view.

And he’s foreshadowing legal shenanigans by his team that would leave many Democratic voters feeling robbed. Try this on for size: Litigation to determine the next president winds up with the Supreme Court, where three Trump-appointed justices are part of a majority decision in his favor. It’s possible.

“Things that seemed off-the-wall are now on-the-wall,” Hasen told me. Last February he released a book, “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy,” the title of which now reads, if anything, as understated.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115823&title=%E2%80%9CWill%20Trump%E2%80%99s%20Presidency%20Ever%20End%3F%20America%20Is%20in%20Terrible%20Danger%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Are Republican Judges Putting Their Thumbs on the Electoral Scale?”<https://electionlawblog.org/?p=115821>
Posted on September 27, 2020 7:41 am<https://electionlawblog.org/?p=115821> by Rick Hasen<https://electionlawblog.org/?author=3>

Erwin Chemerinsky NYT oped.<https://www.nytimes.com/2020/09/25/opinion/voting-courts-republicans.html?action=click&module=Opinion&pgtype=Homepage>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115821&title=%E2%80%9CAre%20Republican%20Judges%20Putting%20Their%20Thumbs%20on%20the%20Electoral%20Scale%3F%E2%80%9D>
Posted in Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>


“In Critical Swing State, Trump Again Stokes Doubt on Election Process”<https://electionlawblog.org/?p=115819>
Posted on September 27, 2020 7:39 am<https://electionlawblog.org/?p=115819> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/26/us/politics/trump-rally-middletown-pa.html?action=click&module=Top%20Stories&pgtype=Homepage>

President Trump sought again on Saturday night to cast doubt on the integrity of the presidential election, telling supporters that the only way Democrats can win in Pennsylvania is to “cheat on the ballots” and raising the prospect that a disputed election could be decided by Congress.

Pressing his baseless case that the election in November will be a “disaster,” Mr. Trump said at a rally just outside a hangar at the Harrisburg airport that he would have “an advantage” if Congress were to decide.

The comments, delivered in drizzling rain, were part of the president’s continuing effort to discredit the United States’ election process as he trails former Vice President Joseph R. Biden Jr., his Democratic rival.

“I don’t want to end up in the Supreme Court, and I don’t want to go back to Congress, even though we have an advantage if we go back to Congress. Does everyone understand that?” Mr. Trump told supporters. “I think it’s 26 to 22 or something.”

“It’s counted one code per state,” he said. “So we actually have an advantage. Oh, they’re going to be thrilled to hear that. I’m sure they’re trying to figure out, ‘How can we break that one?’”

Mr. Trump appeared to be referring to what is known as a contingent election, in which the House of Representatives chooses the next president if no candidate wins an absolute majority of votes in the Electoral College — an outcome that would be more likely if the results in key states were in dispute. In that case, each state’s House delegation is given one vote, with 26 votes required to win.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115819&title=%E2%80%9CIn%20Critical%20Swing%20State%2C%20Trump%20Again%20Stokes%20Doubt%20on%20Election%20Process%E2%80%9D>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Great Effort to Educate Pennsylvania Voters About “Naked Ballots” and How to Properly Submit a Mail-In Ballot<https://electionlawblog.org/?p=115816>
Posted on September 27, 2020 7:36 am<https://electionlawblog.org/?p=115816> by Rick Hasen<https://electionlawblog.org/?author=3>

Love this<https://twitter.com/aztammyp/status/1310007570984128512>:
[cid:image002.jpg at 01D694A4.3E5EDCC0]
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115816&title=Great%20Effort%20to%20Educate%20Pennsylvania%20Voters%20About%20%E2%80%9CNaked%20Ballots%E2%80%9D%20and%20How%20to%20Properly%20Submit%20a%20Mail-In%20Ballot>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump readies thousands of attorneys for election fight”<https://electionlawblog.org/?p=115813>
Posted on September 27, 2020 7:33 am<https://electionlawblog.org/?p=115813> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/09/27/trump-legal-network-election-day-fight-422035>

A year before President Donald Trump alarmed Americans with talk of disputing elections last week, his team started building a massive legal network to do just that.

Dozens of lawyers from three major law firms have been hired. Thousands of volunteer attorneys and poll watchers across the country have been recruited. Republicans are preparing pre-written legal pleadings that can be hurried to the courthouse the day after the election, as wrangling begins over close results and a crush of mail-in ballots. Attorneys from non-battleground states, including California, New York and Illinois, are being dispatched to more competitive areas and trained on local election laws….

Democrats have launched their own gargantuan effort, doubling their efforts since 2016. They’ve amassed a team to educate voters, respond to charges of voter suppression and counter foreign interference and misinformation, according to the Biden campaign.

The effort is being led by Dana Remus, Biden’s general counsel, and Bob Bauer, a former White House counsel during the Obama administration who joined the campaign full-time this summer. It includes a national team for special litigation spearheaded by former solicitors general Donald Verrilli and Walter Dellinger, as well as Marc Elias, a nationally recognized Democratic elections lawyer, according to the campaign. Former Attorney General Eric Holder also is involved.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115813&title=%E2%80%9CTrump%20readies%20thousands%20of%20attorneys%20for%20election%20fight%E2%80%9D>
Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


Norm Ornstein on CBS News About News Media Transparency on Calling Election Results<https://electionlawblog.org/?p=115811>
Posted on September 27, 2020 7:24 am<https://electionlawblog.org/?p=115811> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch here<https://www.yahoo.com/news/watchdog-calls-transparency-news-organizations-043551794.html>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115811&title=Norm%20Ornstein%20on%20CBS%20News%20About%20News%20Media%20Transparency%20on%20Calling%20Election%20Results>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Voters’ Poorly Marked Ovals Could Lead to Contested Ballots”<https://electionlawblog.org/?p=115809>
Posted on September 27, 2020 7:23 am<https://electionlawblog.org/?p=115809> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports<https://www.yahoo.com/news/voters-poorly-marked-ovals-could-132344856.html>.

EVERY state right now should put in place rules beforehand as to how to judge whether a poorly marked oval is counted, and how.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115809&title=%E2%80%9CVoters%E2%80%99%20Poorly%20Marked%20Ovals%20Could%20Lead%20to%20Contested%20Ballots%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>


Brendan Nyhan on Morning Joe: “This is a democratic emergency, says professor”<https://electionlawblog.org/?p=115806>
Posted on September 27, 2020 7:20 am<https://electionlawblog.org/?p=115806> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch here.<https://www.msnbc.com/morning-joe/watch/this-is-a-democratic-emergency-says-professor-92444741592>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115806&title=Brendan%20Nyhan%20on%20Morning%20Joe%3A%20%E2%80%9CThis%20is%20a%20democratic%20emergency%2C%20says%20professor%E2%80%9D>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Error discovered on Georgia touchscreens in US Senate race”<https://electionlawblog.org/?p=115804>
Posted on September 26, 2020 1:23 pm<https://electionlawblog.org/?p=115804> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC<https://www.ajc.com/politics/error-discovered-on-georgia-touchscreens-in-us-senate-race/M7CJDSSZHRDBJFGTHYCPJ4APHM/>:

Georgia election officials said Saturday they found a programming error on the state’s voting touchscreens that caused a row of candidates in the 21-person U.S. Senate special election<https://www.ajc.com/politics/politics-blog/stay-in-get-out-dizzying-messages-in-georgia-us-senate-race-for/DHUQS4MDCVBRTC4CLIRA4SYQHI/> to disappear at times when flipping back and forth between screens.

The problem will require reprogramming the state’s 30,000 new touchscreens<https://www.ajc.com/news/state--regional-govt--politics/georgia-bets-new-voting-system-amid-high-stakes-election/XVR7Jw5i1J7MiZ11O8xUZK/>, called ballot-marking devices, about two weeks before in-person early voting begins Oct. 12.

The issue occurred in the U.S. Senate special election, which includes Republican U.S. Sen. Kelly Loeffler and U.S. Rep. Doug Collins, along with Democrats Raphael Warnock, Matt Lieberman and Ed Tarver.By Rocket Mortgage®Advertiser Content<https://www.ajc.com/native/?prx_t=_L8FAWZBDAhcgQA&ntv_oc=134&ntv_fr>

To fit so many candidates on one screen, election officials had to divide the race into two columns, said Deputy Secretary of State Jordan Fuchs. She said that kind of ballot format isn’t standard, but it was easier for voters, and election officials wanted to ensure all candidates appeared together.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115804&title=%E2%80%9CError%20discovered%20on%20Georgia%20touchscreens%20in%20US%20Senate%20race%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>


Former Fla. Supreme Court Justice Charles Wells, Democratic Justice Who Sided with Bush in Bush v. Gore Case Before It Got To SCOTUS Writes “President Trump’s threat to not accept the outcome of the election is a grave and real threat to our democracy”<https://electionlawblog.org/?p=115802>
Posted on September 26, 2020 1:17 pm<https://electionlawblog.org/?p=115802> by Rick Hasen<https://electionlawblog.org/?author=3>

Start here (via Bill Kristol<https://twitter.com/BillKristol/status/1309852213339193349>):
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115802&title=Former%20Fla.%20Supreme%20Court%20Justice%20Charles%20Wells%2C%20Democratic%20Justice%20Who%20Sided%20with%20Bush%20in%20Bush%20v.%20Gore%20Case%20Before%20It%20Got%20To%20SCOTUS%20Writes%20%E2%80%9CPresident%20Trump%E2%80%99s%20threat%20to%20not%20accept%20the%20outcome%20of%20the%20election%20is%20a%20grave%20and%20real%20threat%20to%20our%20democracy%E2%80%9D>
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/>


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200927/6cad4e06/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200927/6cad4e06/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 84433 bytes
Desc: image002.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200927/6cad4e06/attachment.jpg>