[EL] ELB News and Commentary 2/8/21

[Rick Hasen]

“Impeachment Case Aims to Marshal Outrage of Capitol Attack Against Trump”<https://electionlawblog.org/?p=120788>
Posted on February 8, 2021 7:16 am<https://electionlawblog.org/?p=120788> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/02/07/us/politics/trump-impeachment.html>

When House impeachment managers prosecute former President Donald J. Trump this week for inciting the Capitol attack<https://www.nytimes.com/2021/01/13/us/politics/trump-impeached.html>, they plan to mount a fast-paced, cinematic case aimed at rekindling the outrage lawmakers experienced on Jan. 6.

Armed with lessons from Mr. Trump’s first impeachment trial<https://www.nytimes.com/2020/02/05/us/politics/trump-acquitted-impeachment.html>, which even Democrats complained was repetitive and sometimes sanctimonious, the prosecutors managing his second<https://www.google.com/search?q=house+impeachment+managers+nytimes&oq=house+impeachment+managers+nytimes&aqs=chrome..69i57j69i60l3.4041j0j9&sourceid=chrome&ie=UTF-8> are prepared to conclude in as little as a week, forgo distracting witness fights and rely heavily on video, according to six people working on the case.

It would take 17 Republicans joining every Democrat to find Mr. Trump guilty, making conviction unlikely<https://www.nytimes.com/interactive/2021/01/25/us/politics/senate-impeachment-whip-count.html>. But when the trial opens on Tuesday at the very scene of the invasion, the prosecutors will try to force senators who lived through the deadly rampage as they met to formalize President Biden’s election victory<https://www.nytimes.com/2021/01/06/us/politics/congress-gop-subvert-election.html> to reckon with the totality of Mr. Trump’s monthslong drive to overturn the election<https://www.nytimes.com/2021/01/31/us/trump-election-lie.html> and his failure to call off the assault<https://www.nytimes.com/2021/01/06/us/politics/capitol-breach-trump-protests.html>.

“The story of the president’s actions is both riveting and horrifying,” Representative Jamie Raskin<https://www.nytimes.com/2021/01/12/us/politics/jamie-raskin-trump.html>, Democrat of Maryland and the lead prosecutor, said in an interview. “We think that every American should be aware of what happened — that the reason he was impeached by the House and the reason he should be convicted and disqualified from holding future federal office is to make sure that such an attack on our democracy and Constitution never happens again.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Fight Over Voting Rules Revs Up in Georgia”<https://electionlawblog.org/?p=120786>
Posted on February 8, 2021 7:12 am<https://electionlawblog.org/?p=120786> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ<https://www.wsj.com/articles/fight-over-voting-access-revs-up-in-georgia-11612780203> reports.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Lawsuits Take the Lead in Fight Against Disinformation”<https://electionlawblog.org/?p=120783>
Posted on February 7, 2021 11:37 am<https://electionlawblog.org/?p=120783> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/02/06/business/media/conservative-media-defamation-lawsuits.html>

In just a few weeks, lawsuits and legal threats from a pair of obscure election technology companies have achieved what years of advertising boycotts, public pressure campaigns and liberal outrage could not: curbing the flow of misinformation in right-wing media.

Fox Business canceled<https://www.nytimes.com/2021/02/05/business/lou-dobbs-fox.html> its highest rated show, “Lou Dobbs Tonight,” on Friday after its host was sued as part of a $2.7 billion defamation lawsuit<https://www.nytimes.com/2021/02/04/business/media/smartmatic-fox-news-lawsuit.html>. On Tuesday, the pro-Trump cable channel Newsmax cut off a guest’s rant about rigged voting machines. Fox News, which seldom bows to critics, has run fact-checking segments to debunk its own anchors’ false claims about electoral fraud.

This is not the typical playbook for right-wing media, which prides itself on pugilism and delights in ignoring the liberals who have long complained about its content. But conservative outlets have rarely faced this level of direct assault on their economic lifeblood.

Smartmatic, a voter technology firm swept up in conspiracies spread by former President Donald J. Trump and his allies, filed its defamation suit against Rupert Murdoch’s Fox empire on Thursday, citing Mr. Dobbs and two other Fox anchors, Maria Bartiromo and Jeanine Pirro, for harming its business and reputation.

Dominion Voting Systems, another company that Mr. Trump has accused of rigging votes, filed defamation suits<https://www.nytimes.com/2021/01/25/us/politics/rudy-giuliani-dominion-trump.html> last month against two of the former president’s lawyers, Rudolph W. Giuliani and Sidney Powell, on similar grounds. Both firms have signaled that more lawsuits may be imminent.

Litigation represents a new front in the war against misinformation, a scourge that has reshaped American politics, deprived citizens of common facts and paved the way for the deadly Jan. 6 attack on the Capitol. Fox News, for instance, paid millions last year to settle a claim<https://www.nytimes.com/2020/11/24/business/media/fox-news-seth-rich.html> from the family of a murdered Democratic National Committee staff member falsely accused by Fox hosts of leaking emails to WikiLeaks.

But the use of defamation suits has also raised uneasy questions about how to police a news media that counts on First Amendment protections — even as some conservative outlets advanced Mr. Trump’s lies and eroded public faith in the democratic process.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Pushing QAnon and Stolen Election Lies, Flynn Re-emerges”<https://electionlawblog.org/?p=120781>
Posted on February 7, 2021 11:33 am<https://electionlawblog.org/?p=120781> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2021/02/06/us/politics/michael-flynn-qanon.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“A Plan to Keep Extremists Out of the G.O.P.”<https://electionlawblog.org/?p=120779>
Posted on February 7, 2021 11:22 am<https://electionlawblog.org/?p=120779> by Rick Hasen<https://electionlawblog.org/?author=3>

Timothy Egan<https://www.nytimes.com/2021/02/05/opinion/a-plan-to-keep-extremists-out-of-the-gop.html> for NYT Opinion:

Hear me out. In Washington, along with California, the top two vote-getters in a congressional primary, regardless of party affiliation, advance to the general election. Sometimes two Democrats make the final. Sometimes two Republicans. Often, it’s one of each, with partisan zealots left out.

In my home state of Washington, the Trump fanatics, conspiracy theorists and misinformation merchants who dominate the G.O.P. are in a lather over the votes by Herrera Beutler and Newhouse to impeach Trump.

“Turning a blind eye to this brutal assault on our Republic is not an option,” Newhouse said<https://newhouse.house.gov/media-center/press-releases/newhouse-statement-impeachment> last month in announcing his decision.

“I’m not afraid of losing my job,” said<https://time.com/5931868/trump-republican-party-future/> Herrera Beutler. “But I am afraid that my country will fail.”

Republicans in her district, a moderate to conservative swath of southwestern Washington, called her vote<http://www.chronline.com/news/herrera-beutlers-impeachment-vote-sees-backlash-from-republicans-in-her-home-county/article_7e278b34-5742-11eb-8e50-d3580ebf923c.html> shameful, and they vowed to primary her. Good luck with that.

In a top-two primary system, Herrera Beutler will almost certainly make the runoff, even if another Republican gets more Republican-leaning votes in the primary. But in the general, she’ll pick up independents and many Democrats, as she did in the past. She won<https://www.nytimes.com/interactive/2020/11/03/us/elections/results-washington-house-district-3.html> by 13 percentage points last November, in a district that Trump carried by four points.

Removing the leverage to knock out Herrera Beutler in the primary allows her to be more accountable to her constituents than to her party. Little wonder that she’s also a member<https://problemsolverscaucus-gottheimer.house.gov/members> of the bipartisan Problem Solvers Caucus.

I expressed some similar views <https://slate.com/news-and-politics/2021/01/biden-pelosi-schumer-john-lewis-save-democracy.html> here at Slate:

Making these kinds of changes will help assure that elections are fairer and that results will more likely reflect the will of the people. But they won’t do enough to deal with the Trumpian wing of the Republican Party, which needs to be weakened to re-create a system in which both political parties are led by responsible actors, and where leaders cannot be held hostage to a radical minority within the Republican party.

To that end, we need structural change to help Republican moderates fend off primary challenges from Trumpians in the House and Senate. There are a number of forms such changes can take. As the Supreme Court recognized in Rucho v. Common Cause<https://supreme.justia.com/cases/federal/us/588/18-422/>, Congress has broad power to set the rules for congressional redistricting even if states object. Congress can require districts to be drawn with bipartisan or nonpartisan commissions, which can help eliminate some of the more extreme forms of gerrymandering that lead to the election of more extreme Republican candidates. In light of the fact that moderate Republicans fear getting primaried by more extreme insurgents within the party, Congress can require the use of ranked choice voting, or other methods of voting that require winners to represent true electoral majorities.
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Posted in political polarization<https://electionlawblog.org/?cat=68>, primaries<https://electionlawblog.org/?cat=32>


“Money in Politics, One Month Later; Since the Capitol riot, companies have re-evaluated their political donations. Will this be a turning point or a momentary blip?”<https://electionlawblog.org/?p=120777>
Posted on February 7, 2021 11:17 am<https://electionlawblog.org/?p=120777> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT Dealbook.<https://www.nytimes.com/2021/02/06/business/dealbook/corporate-donations-politics.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s lie that the election was stolen has cost $519 million(and counting) as taxpayers fund enhanced security, legal fees, property repairs and more<https://electionlawblog.org/?p=120775>
Posted on February 6, 2021 3:00 pm<https://electionlawblog.org/?p=120775> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo analysis.<https://www.washingtonpost.com/politics/interactive/2021/cost-trump-election-fraud/?itid=hp_alert>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Pam Karlan Back to DOJ to Help Protect Voting Rights (and Off the Facebook Oversight Board)<https://electionlawblog.org/?p=120773>
Posted on February 6, 2021 2:46 pm<https://electionlawblog.org/?p=120773> by Rick Hasen<https://electionlawblog.org/?author=3>

Great news<https://www.politico.com/news/2021/02/06/facebook-oversight-board-member-decamps-for-biden-doj-466526> for our country that Pam is back to working for the U.S. to protect voting rights. No one is smarter about voting rights than Pam.
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>


“Was Election Denial Just a Get-Rich-Quick Scheme? Donors’ Lawsuits Look for Answers” (with Juicy Tidbits on True the Vote Lawsuit)<https://electionlawblog.org/?p=120771>
Posted on February 6, 2021 11:39 am<https://electionlawblog.org/?p=120771> by Rick Hasen<https://electionlawblog.org/?author=3>

Some great reporting her<https://theintercept.com/2021/02/06/election-deniers-profit-lawsuits/>e from Richard Salame:

Eshelman ultimately gave True the Vote a total of $2.5 million for its 2020 election efforts. True the Vote launched<https://truethevote.org/true-the-vote-launches-validate-the-vote-initiative-and-whistleblower-compensation-fund-to-ensure-election-validity-process-integrity/> a massive undertaking in November to recruit whistleblowers, lobby legislatures, analyze data, and file lawsuits in seven battleground states. The project’s budget estimate of $7.3 million, as given in a project overview, was roughly 17 times True the Vote’s total 2018 revenue, the most recent year for which the group’s finances are publicly available. As part of the initiative, called “Validate the Vote,” True the Vote even budgeted $700,000 for a battle in the U.S. Supreme Court.

In the end, True the Vote filed suit in just four states and voluntarily dismissed those four suits just days later, before any hearings had taken place. The group has offered various explanations for the dismissals. In one email to supporters, the group referenced “an excruciating series of events that will one day be known, but now is not the time to air.” James Bopp, True the Vote’s general counsel, who brought those four suits, said that the decision was based on several factors, including his professional judgment that they weren’t going to bear fruit for his clients.

Eshelman and his advisers’ relationship with True the Vote soured around this time. According to Eshelman, the dropped lawsuits were a major part of this. Bopp, in an interview, contested that notion, saying that the relationship was strained by Engelbrecht’s hesitancy to pay a large invoice to one of Eshelman’s associates three days prior.

Through a representative, Eshelman said, “True the Vote failed, in every way, to make use of my donation to investigate and either prove or disprove election fraud, as agreed upon, and failed to respond to my requests for information about how the funds were spent. Any attempts by True the Vote to claim otherwise is a red herring the group is using to hide behind its deceptive and manipulative practices.”

According to court filings, the megadonor demanded a refund of most of his donation. When True the Vote offered to return only half that amount, Eshelman filed suit against the group in federal court, forcing open a window into its day-to-day operations for the first time.

The suit raised allegations against Gregg Phillips, a former True the Vote board member, who was listed, among other associates, as a defendant on the amended complaint. Phillips is best known as the original source of Trump’s bogus claim<https://www.bbc.com/news/world-us-canada-38126438> that millions of undocumented immigrants voted in the 2016 presidential election, costing Trump the national popular vote. But before he became the author of one of 2016’s most pernicious bits of misinformation, Phillips was a conservative warrior with a checkered past, including conflict of interest allegations<https://www.theguardian.com/us-news/2017/jan/27/trump-voter-fraud-gregg-phillips-unpaid-taxes> in the Mississippi and Texas state governments. (Phillips, in news coverage, denied any wrongdoing in the incidents.)

In his suit, Eshelman accused Phillips, who sat on the True the Vote board of directors from at least 2015 to 2017, of siphoning funds from the group. The suit says Phillips formed an opaque entity, “OPSEC Group LLC,” just weeks before the 2020 election as a vehicle for moving funds. Public records show it was incorporated in September 2020; Phillips says it was founded in 2019. Eshelman’s lawyers alleged that Engelbrecht, the True the Vote president, is Phillips’s lover and that the pair actively conspired to defraud credulous conservative donors with talk of plans to detect voter fraud despite having no intention or ability to follow through. (Phillips did not respond to a detailed request for comment.)

Engelbrecht and True the Vote, as well as Phillips and OPSEC, denied these allegations in court. Among other defenses, they claimed that substantial work was accomplished as part of the “Validate the Vote” project. “Through its activities, True the Vote has acquired whistleblower testimony and information which has led to four indictments so far in Arizona, federal investigations in Nevada and Georgia, and investigations by Michigan officials,” a lawyer for both True the Vote and Phillips stated in court filings.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“USTPC HotTopics Webinar on Technology & Trust: Voting in the Electronic Age, February 11, 2021”<https://electionlawblog.org/?p=120769>
Posted on February 5, 2021 4:32 pm<https://electionlawblog.org/?p=120769> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://www.acm.org/public-policy/ustpc/technology-and-trust-voting-in-the-electronic-age> looks like a valuable meeting.
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Posted in voting technology<https://electionlawblog.org/?cat=40>


“Financial Inclusion in Politics”<https://electionlawblog.org/?p=120767>
Posted on February 5, 2021 2:41 pm<https://electionlawblog.org/?p=120767> by Rick Hasen<https://electionlawblog.org/?author=3>

Terrific new draft paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3767092> with some key data from Abhey Aneja, Jacob Grumbach, and Abby Wood. Here is the abstract:

Our deregulated campaign finance system has a race problem. We use innovations in statistical methods and the universe of campaign contributions for federal elections to analyze the racial distribution of money in American politics between 1980 and 2012. We find that white people are severely overrepresented among donors. A stunning 91% of money contributed to state and federal candidates by individuals has come from non-Hispanic white donors. The racial gap in campaign contributions is significantly greater than the gap in voter participation and elected office holding. It is also relatively constant across time and elected offices.

This result is an important missing piece in the conversation about equity in political participation. We argue that the courts and Congress should take steps to address the racial gaps in campaign finance participation. The participation and representation problems that flow from racial inequality in deregulated campaign finance could inform claims under the Voting Rights Act (VRA), and politico-financial inequalities certainly bear on the normative problems that the statute intends to address. But the most politically viable way to address the campaign finance racial gap lies in adoption of public financing for political campaigns, which offer the promise of increasing the racial representativeness of campaign contributions. When racial representativeness in contributions is improved, improved equality in the distribution of resources and power in electoral and political systems should follow.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Claudia Tenney to be certified as winner of New York’s 22nd race, judge rules”<https://electionlawblog.org/?p=120765>
Posted on February 5, 2021 2:23 pm<https://electionlawblog.org/?p=120765> by Rick Hasen<https://electionlawblog.org/?author=3>

Syracuse.com:<https://www.syracuse.com/politics/cny/2021/02/claudia-tenney-to-be-certified-as-winner-of-new-yorks-22nd-race.html>

 Republican Claudia Tenney will be certified as the winner of New York’s 22nd Congressional District race, a judge ruled Friday, ending a three-month ordeal in the only undecided House race in the country.

The ruling represents the most definitive answer to who won in an election saga with many twists and turns, though it’s not entirely over yet. Democrat Anthony Brindisi has promised to appeal at the state court, and he could seek to contest the election results at the House of Representatives itself.https://9bbfba686363572403305ba1ef9dc273.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html

Tenney, of New Hartford, is ahead of Brindisi by 109 votes. She earned 156,099 votes to Brindisi’s 155,989.

State Supreme Court Justice Scott DelConte ruled that counties and the state elections board are to certify the election, rejecting an effort by Democrat Anthony Brindisi<https://www.syracuse.com/politics/cny/2021/02/its-a-very-very-high-bar-to-delay-ny22-race-from-being-certified-judge-tells-brindisis-attorneys.html>, who occupied the seat until November 2020, to keep the election unofficial until his appeal to a higher court concludes.

In ruling against Brindisi, DelConte argued that the Democrat did not provide enough evidence that certifying Tenney would cause “irreparable harm,” given that he still had a remedy at the federal level.

It’s not clear when Brindisi’s appeal will begin. His attorneys announced Friday morning that they will appeal DelConte’s rejection of several hundred ballots that Brindisi wanted counted.

In his ruling, DelConte criticized local elections boards for what he said amounted to “systemic violations of state and federal election law” that affected both candidates. In particular, he singled out Oneida County’s failure to process more than 2,400 applications from voters who registered via the DMV, which rendered them unable to vote on Election Day.
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Posted in recounts<https://electionlawblog.org/?cat=50>


“What of ‘Individual-1’? Feds’ Trump campaign case is ‘dead’”<https://electionlawblog.org/?p=120763>
Posted on February 5, 2021 2:05 pm<https://electionlawblog.org/?p=120763> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/article/donald-trump-campaign-case-dead-a03b35429340d997593f049885331035>:

When Donald Trump lost the legal shield of the presidency last month, some pundits speculated federal prosecutors might revive an investigation that implicated him in possible campaign finance crimes during his 2016 run for office.

But several people involved in the case say the U.S. attorney’s office in Manhattan has made no move to restart the hush-money probe that once dogged Trump’s presidency and sent his former attorney, Michael Cohen, to prison.

In fact, an attorney for one key witness described the investigation as “dead,” adding prosecutors have even returned certain evidence they collected — a likely indication no one else will be charged. The attorney spoke on the condition of anonymity because prosecutors have not discussed the case publicly.
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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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