[EL] ELB News and Commentary 2/16/21

[Rick Hasen]

“Pennsylvania G.O.P.’s Push for More Power Over Judiciary Raises Alarms”<https://electionlawblog.org/?p=120870>
Posted on February 16, 2021 7:54 am<https://electionlawblog.org/?p=120870> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/02/15/us/politics/pennsylvania-republicans.html>

G.O.P. legislators, dozens of whom supported overturning the state’s election results to aid former President Donald J. Trump, are moving to change the entire way that judges are selected in Pennsylvania, in a gambit that could tip the scales of the judiciary to favor their party, or at least elect judges more inclined to embrace Republican election challenges.

The proposal would replace the current system of statewide elections for judges with judicial districts drawn by the Republican-controlled legislature. Those districts could empower rural, predominantly conservative areas and particularly rewire the State Supreme Court, which has a 5-to-2 Democratic lean.

Democrats are now mobilizing to fight the effort, calling it a thinly veiled attempt at creating a new level of gerrymandering — an escalation of the decades-old practice of drawing congressional and state legislative districts to ensure that political power remains in one party’s hands. Democrats are marshaling grass-roots opposition, holding regular town hall events conducted over Zoom, and planning social media campaigns and call-in days to legislators, as well as an enormous voter education campaign. One group, Why Courts Matter Pennsylvania, has cut a two-minute infomercial<https://www.youtube.com/watch?time_continue=1&v=g7-BAsI80eA&feature=emb_title>.

Republicans in Pennsylvania have historically used gerrymandering to maintain their majority in the legislature, despite Democratic victories in statewide elections. Republicans have controlled the State House of Representatives since 2011 and the State Senate since 1993.

Current schedules for the legislature make it unlikely the Republicans could marshal their majorities in the House and Senate to pass the bill by Wednesday and put the proposal before voters on the ballot in May. Passing the bill after that date would set up a new and lengthy political war for November in this fiercely contested state.

Republicans have some history on their side: Pennsylvania voters tend to approve ballot measures.

“You should be very suspicious when you see a legislature who has been thwarted by a Supreme Court in its unconstitutional attempts to rig the democratic process then trying to rig the composition of that Supreme Court,” said Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice.
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Posted in judicial elections<https://electionlawblog.org/?cat=19>


“N.A.A.C.P. Sues Trump and Giuliani Over Election Fight and Jan. 6 Riot”<https://electionlawblog.org/?p=120868>
Posted on February 16, 2021 7:50 am<https://electionlawblog.org/?p=120868> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2021/02/16/us/politics/naacp-sues-trump-giuliani-proud-boys-capitol.html>:

The N.A.A.C.P. on Tuesday morning filed a federal lawsuit against former President Donald J. Trump<https://www.nytimes.com/topic/person/donald-trump> and his personal lawyer Rudolph W. Giuliani, claiming that they violated a 19th century statute when they tried to prevent the certification<https://www.nytimes.com/2021/01/05/us/politics/pence-trump-election-results.html> of the election<https://www.nytimes.com/2021/01/31/us/trump-election-lie.html> on Jan. 6.

The civil rights organization brought the suit on behalf of Representative Bennie Thompson, Democrat of Mississippi. Other Democrats in Congress — including Representatives Hank Johnson of Georgia and Bonnie Watson Coleman of New Jersey — are expected to join as plaintiffs in the coming weeks, according to the N.A.A.C.P.

The lawsuit contends that Mr. Trump and Mr. Giuliani violated the Ku Klux Klan Act, an 1871 statute that includes protections against violent conspiracies that interfered with Congress’s constitutional duties; the suit also names the Proud Boys, the far-right nationalist group, and the Oath Keepers militia group. The legal action accuses Mr. Trump, Mr. Giuliani and the two groups of conspiring to incite a violent riot<https://www.nytimes.com/2021/02/13/us/politics/capitol-riots-impeachment-trial.html?action=click&module=RelatedLinks&pgtype=Article> at the Capitol, with the goal of preventing Congress<https://www.nytimes.com/2021/02/13/us/politics/trump-capitol-riot.html> from certifying the election.

The suit is the latest legal problem for Mr. Trump: New York prosecutors are investigating<https://www.nytimes.com/2020/12/11/nyregion/trump-taxes-cy-vance.html?searchResultPosition=8> his financial dealings; New York’s attorney general is pursuing a civil investigation<https://www.nytimes.com/live/2021/02/14/us/trump-impeachment#heres-where-things-stand-with-the-criminal-and-civil-investigations-targeting-trump> into whether Mr. Trump’s company misstated assets to get bank loans and tax benefits; and a Georgia district attorney is examining his election interference effort<https://www.nytimes.com/2021/02/13/us/politics/fani-willis-trump.html> there.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“As redistricting looms, Democrats jockey to counter GOP edge”<https://electionlawblog.org/?p=120866>
Posted on February 16, 2021 7:49 am<https://electionlawblog.org/?p=120866> by Rick Hasen<https://electionlawblog.org/?author=3>

Nicholas Riccardi<https://apnews.com/article/new-york-redistricting-andrew-cuomo-wrestling-elections-f13d214732a948d88418b005dd9131de> for AP:

In the name of fairness, New York Gov. Andrew Cuomo and his Democratic allies once welcomed the creation of a nonpartisan redistricting commission that would redraw congressional maps free of political influence and avoid contorted gerrymandering.

But now that the commission is stepping up its work, New York Democrats seem to be having second thoughts. The state may lose House seats and, under the old rules, Democrats would have had the power to redraw lines in their favor.

Some Democrats want to make it easier to overrule the commission.

As the once-a-decade redistricting conflicts heat up across the country, both Republicans and Democrats are wrestling with how far to press their advantage in a fight as consequential as any election. For Republicans that means building on the success of 10 years ago — even as some population and political trends work against them. For Democrats, it’s a test of their commitment to the changes they’ve long argued are needed to create a level playing field.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“Lives in the Law | A Post-Mortem on the 2020 Elections and the Way Forward”<https://electionlawblog.org/?p=120864>
Posted on February 15, 2021 3:58 pm<https://electionlawblog.org/?p=120864> by Rick Hasen<https://electionlawblog.org/?author=3>

Looking forward to doing this Zoom even<https://delawarelibraries.libcal.com/event/7382581>t with Ron Collins on Wednesday, Feb. 17, at 5 pm ET/2 pm PT. RSVP required
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“A GOP donor gave $2.5 million for a voter fraud investigation. Now he wants his money back.”<https://electionlawblog.org/?p=120862>
Posted on February 15, 2021 12:05 pm<https://electionlawblog.org/?p=120862> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/investigations/true-vote-lawsuit-fraud-eshelman/2021/02/15/a7017adc-6724-11eb-886d-5264d4ceb46d_story.html> offers another True the Vote/Jim Bopp/Eshelman lawsuit dive.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Opinion: Election integrity or suppression? Gov. Abbott is taking aim at voting rights.”<https://electionlawblog.org/?p=120860>
Posted on February 14, 2021 4:03 pm<https://electionlawblog.org/?p=120860> by Rick Hasen<https://electionlawblog.org/?author=3>

Stephanie Gomez oped<https://urldefense.com/v3/__https:/www.houstonchronicle.com/opinion/outlook/article/Opinion-Election-integrity-or-suppression-Gov-15937296.php__;!!LkSTlj0I!WljV76eP401xNS_KrnMg3vUm5XALXTG21zMhJLGCGa5RItwzSOMI__0_kseDntVxhXI$> in the Houston Chronicle:

Gov. Greg Abbott revealed his priorities for the 2021 Texas Legislative session, designating “election integrity” as an emergency item that lawmakers can vote on within the first 60 days of session, potentially bypassing the due deliberation and public input this issue deserves. House Speaker Dade Phelan named Rep. Briscoe Cain as the chair of the House Elections Committee, despite his notoriety for traveling to Pennsylvania to help overthrow the results of the 2020 election.

These actions signal an escalating attack on voting rights in a state that is infamous for being among the hardest in the nation to cast a ballot. It feeds and amplifies dangerously false rhetoric designed to undermine trust in our democratic system and prioritize partisan interests over the will of the people — exactly what fueled the failed white supremacist insurrection at the U.S. Capitol just weeks ago.

Opponents of democracy rely on unconscionable double-speak to assert there must be “trust and confidence in the outcome of our elections,” without ever acknowledging the complicity of the state’s leadership — Sen. Ted Cruz, Attorney General Ken Paxton and Lt. Gov. Dan Patrick — in undermining the trust and confidence the people hold in our democratic processes.

Abbott, Cain and their co-conspirators are willfully perpetuating distrust in democracy to hold on to power in Texas. Partisan actors have been chasing the specter of voter fraud for years, scaring Texans and funneling misinformation about the integrity of our elections to sow seeds of doubt and mistrust. It’s not new or surprising — their true mission is to continue Texas’s 150-year-old pattern of voter suppression.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Graham’s post-election call with Raffensperger will be scrutinized in Georgia probe, person familiar with inquiry says”<https://electionlawblog.org/?p=120858>
Posted on February 14, 2021 1:37 pm<https://electionlawblog.org/?p=120858> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/lindsey-graham-georgia-investigation/2021/02/12/f12faa82-6d6b-11eb-9f80-3d7646ce1bc0_story.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Ned Foley: The Election Law Implications of Trump’s Acquittal<https://electionlawblog.org/?p=120848>
Posted on February 13, 2021 2:32 pm<https://electionlawblog.org/?p=120848> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Ned Foley:<https://moritzlaw.osu.edu/faculty/edward-b-foley/>

What are the consequences of the Senate acquitting Trump from an election law perspective—the perspective, in other words, of protecting the electoral process in the future?

It depends, most basically, on whether or not Trump wishes to run again in 2024.

If he doesn’t, you can make the argument that the system will be safe from his unique danger to it, his uniquely narcissistic belief that an election can’t be fair if the vote count shows him losing.

On this view, any Trumpian protégé as the GOP nominee next time—be it Josh Hawley, or Ron DeSantis, or whomever—won’t present the same existential threat to “we the people” and our collective constitutional right to self-government that Trump does. Any of them would presumably accept the verdict of the voters, and not attempt a repetition of the “Big Lie” myth of a stolen election, and thus not be inherently toxic to democracy like Trump.

But you can argue this point the other way. It is often feared that Trump 2.0 will be a shrewder demagogue that Trump himself. Hawley, in other words, would be more successful in sabotaging the electoral victory of his own opponent than just making a symbolic challenge to President Biden’s win on behalf of the Trumpian base.

Rather than debating this unanswerable question, let’s agree on at least this: the Electoral Count Act of 1887, the statute at the heart of the congressional procedure for the January 6 session that was the object of the insurrection, must be amended to make unambiguously clear that no coup-like challenge to a candidate’s Electoral College victory is ever permissible, regardless of what party perpetrates the challenge and for whatever purpose.

Once an Electoral College win is set in the states, as Biden’s was, it was final for all congressional purposes, as Mitch McConnell and Liz Cheney properly understood. That understanding must be recodified in twenty-first century statutory text, replacing the impenetrably dense nineteenth-century verbiage of the 1887, and set in stone, so that nothing like January 6, 2021 is attempted again—not four years from now, not ever.

More must be done than fixing just one statute. We are already seeing a multitude of efforts undertaken by Republicans around the country to make it more difficult for Democrats to win, a motive that some GOP officials openly acknowledge. It has long been commonplace to observe that Republicans, as a party, have become ideologically opposed to free and fair elections.  If this is true, the danger to the future of American democracy is far greater than Donald Trump.

But we should be cautious with this diagnosis and whatever cure might follow from it. A healthy two-party system of electoral competition can’t exist if only one of the two parties is committed to the enterprise. So, if Democrats believe that Republicans have given up on their shared project of self-rule, what then?

There’s a philosophy ascendant among progressives that, if only the Senate would abandon the filibuster, Democrats can put in place an entirely new electoral system that will guarantee free and fair elections for the foreseeable future.  If there were actually the votes to jettison the filibuster, it would be an interesting experiment to see if this theory worked.

I’m dubious. How is it that one political party in two-party system can impose its own vision for running elections over the objections of the other party and expect the result to be successful? “You must play the game of electoral competition by our rules,” Democrats would be telling Republicans. “You don’t get a say in how the game is played, because we don’t trust you to play fair.” That doesn’t sound like a recipe for Republicans agreeing to playing the same game at all.

We must remember that the Voting Rights Act of 1965, our nation’s most important election law, was the bipartisan product of overcoming a filibuster, not one party’s unilateral decision to eliminate filibusters. It will be hard work and will require compromise, but the most pressing need for protecting American democracy—made more urgent because of the Senate’s handling of Trump’s second impeachment—is for Democrats to work with Mitch McConnell and Liz Cheney, who at least have a conception of a free and free election, to hammer out a set of bipartisan reforms that will resuscitate traditional two-party competition with both teams accepting the system’s premises and being willing to play by its rules.  As I’ve already indicated<https://www.washingtonpost.com/opinions/2021/02/04/congress-end-partisan-gerrymandering/>, I would put eliminating gerrymandering at the top of that list.

Okay, so now what if Trump does want to run in 2024? There’s the chance that his own legal and financial problems will prevent him from even being a viable candidate. But if he makes a serious bid for the Republican nomination, let’s hope the GOP still has enough soul to repudiate the man who left his own Vice President, Mike Pence, at the mercy of the mob.

Otherwise, there will need to be schism along the lines of 1912, when Teddy Roosevelt mounted a third-party candidacy.  The responsible center-right of American politics must offer its own alternative to the Party of Trump, if and when it comes to that.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Are Douglass Mackey’s Memes Illegal?”<https://electionlawblog.org/?p=120845>
Posted on February 12, 2021 5:10 pm<https://electionlawblog.org/?p=120845> by Rick Hasen<https://electionlawblog.org/?author=3>

Eugene Volokh<https://www.tabletmag.com/sections/news/articles/douglass-mackey-ricky-vaughn-memes-first-amendment> in Tablet Mag:

In 2016, a Florida man named Douglass Mackey (using the online alias “Ricky Vaughn”) allegedly conspired<https://www.justice.gov/opa/press-release/file/1360816/download> to distribute a meme aimed at deceiving pro-Hillary voters.

Four years later, Mackey is now being prosecuted (as to this and as to other memes) for violating 18 U.S.C. § 241, a federal law that punishes conspiracies “to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution”—namely, the right to vote. Lying to voters in a way that keeps them from voting, the theory goes, is a crime.

Is this sort of prosecution constitutional? After all, people often lie in political campaigns. Candidates do it, activists do it, political operatives do it. Can election lies simply be outlawed?

Surprisingly, the Supreme Court has never resolved the question. It hasn’t resolved the big-picture question: When can the government punish lies? It hasn’t resolved the medium-size question: Can the government punish lies in election campaigns? And it hasn’t resolved the particular question: Can the government punish lies about the mechanisms of voting, and in particular about how to vote?
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Posted in campaigns<https://electionlawblog.org/?cat=59>, cheap speech<https://electionlawblog.org/?cat=130>


Michigan: “Secretary of State Benson: Statewide audit affirms election outcome”<https://electionlawblog.org/?p=120842>
Posted on February 12, 2021 3:59 pm<https://electionlawblog.org/?p=120842> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News:<https://www.detroitnews.com/story/news/politics/2021/02/12/secretary-state-statewide-audit-affirms-accurate-vote-count-biden-victory/6738177002/>

A statewide election audit has affirmed Michigan’s vote-counting machines are accurate and President Joe Biden won the state’s election, Secretary of State Jocelyn Benson said Friday.

Hundreds of municipal and county clerks from more than 1,300 jurisdictions took part in Michigan’s auditing exercise, hand-counting more than 18,000 ballots that were randomly selected, according to a press release from Benson’s office.

In the hand count, Biden received more votes than former President Donald Trump, and the percentage of votes for each candidate was within “fractions of a percentage point of machine-tabulated totals,” according to a press release.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“A New Delay for Census Numbers Could Scramble Congressional Elections”<https://electionlawblog.org/?p=120840>
Posted on February 12, 2021 7:53 am<https://electionlawblog.org/?p=120840> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/02/11/us/us-census-figures-delay.html?smid=tw-share>

The delivery date for the 2020 census data used in redistricting, delayed first by the coronavirus pandemic and then by the Trump administration’s interference, now is so late that it threatens to scramble the 2022 elections, including races for Congress.

The Census Bureau has concluded that it cannot release the population figures needed for drawing new districts for state legislatures and the House of Representatives until late September, bureau officials and others said in recent interviews. That is several months beyond the usual April 1 deadline, and almost two months beyond the July 30 deadline that the agency announced last month. The bureau did not respond to a request for comment but is expected to announce the delay on Friday.

The holdup, which is already cause for consternation in some states, could influence the future of key districts. And with Democrats holding a slim 10-seat House majority, it even has the potential to change the balance of power in the House and some state legislatures, according to Michael Li, the senior counsel at the Brennan Center for Justice at New York University School of Law. States need the figures this year to redraw district lines for the 435 seats in the House of Representatives and for thousands of seats in state legislatures.

The delay means there will be less time for the public hearings and outside comment required in many states, and less time once maps are drawn to contest new district lines in court, as often happens after redistricting.
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Posted in census litigation<https://electionlawblog.org/?cat=125>


“Skewed data fuel questionable claim on Trump election lawsuits”<https://electionlawblog.org/?p=120838>
Posted on February 11, 2021 12:06 pm<https://electionlawblog.org/?p=120838> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://apnews.com/article/fact-checking-afs:Content:9954662940>
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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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