[EL] ELB News and Commentary 1/4/21
Rick Hasen
rhasen at law.uci.edu
Sun Jan 3 20:46:46 PST 2021
“‘I just want to find 11,780 votes’: In extraordinary hour-long call, Trump pressures Georgia secretary of state to recalculate the vote in his favor”<https://electionlawblog.org/?p=120179>
Posted on January 3, 2021 8:43 pm<https://electionlawblog.org/?p=120179> by Rick Hasen<https://electionlawblog.org/?author=3>
Amy Gardner<https://www.washingtonpost.com/politics/trump-raffensperger-call-georgia-vote/2021/01/03/d45acb92-4dc4-11eb-bda4-615aaefd0555_story.html> exclusive for WaPo:
President Trump urged fellow Republican Brad Raffensperger, the Georgia secretary of state, to “find” enough votes to overturn his defeat in an extraordinary one-hour phone call Saturday that legal scholars described as a flagrant abuse of power and a potential criminal act.
The Washington Post obtained a recording<https://www.washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html?itid=lk_inline_manual_3> of the conversation in which Trump alternately berated Raffensperger, tried to flatter him, begged him to act and threatened him with vague criminal consequences if the secretary of state refused to pursue his false claims, at one point warning that Raffensperger was taking “a big risk.”
Throughout the call, Raffensperger and his office’s general counsel rejected Trump’s assertions, explaining that the president is relying on debunked conspiracy theories and that President-elect Joe Biden’s 11,779-vote victory in Georgia was fair and accurate.
Trump dismissed their arguments.
“The people of Georgia are angry, the people of the country are angry,” he said. “And there’s nothing wrong with saying, you know, that you’ve recalculated.”Raffensperger responded: “Well, Mr. President, the challenge that you have is, the data you have is wrong.”
Read the full transcript of the Trump-Raffensperger call<https://www.washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html?itid=lk_interstitial_manual_10>
At another point, Trump said: “So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have. Because we won the state.”
He later added: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”
The rambling and at times incoherent conversation offered a remarkable glimpse of how consumed and desperate the president remains about his loss, unwilling or unable to let the matter go and still asserting he can reverse the results in enough battleground states to remain in office.
Remarkable and dangerous.
NY Times:<https://www.nytimes.com/2021/01/03/us/politics/trump-call-georgia.html>
The call by President Trump on Saturday<https://www.nytimes.com/2021/01/03/us/politics/trump-raffensperger-call-georgia.html> to Georgia’s secretary of state raised the prospect that Mr. Trump may have violated laws that prohibit interference in federal or state elections, but lawyers said on Sunday that it would be difficult to pursue such a charge.
The recording of the conversation<https://www.nytimes.com/2021/01/03/us/politics/trump-raffensperger-georgia-call-transcript.html> between Mr. Trump and Secretary of State Brad Raffensperger of Georgia, first reported by The Washington Post<https://www.washingtonpost.com/politics/trump-raffensperger-call-georgia-vote/2021/01/03/d45acb92-4dc4-11eb-bda4-615aaefd0555_story.html>, led a number of election and criminal defense lawyers to conclude that by pressuring Mr. Raffensperger to “find” the votes he would need to reverse the election outcome in the state, Mr. Trump either broke the law or came close to it.
“It seems to me like what he did clearly violates Georgia statutes,” said Leigh Ann Webster,<https://www.stricklandwebster.com/leigh-ann-webster> an Atlanta criminal defense lawyer, citing a state law<https://law.justia.com/codes/georgia/2016/title-21/chapter-2/article-15/section-21-2-604> that makes it illegal for anyone who “solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage” in election fraud.
At the federal level, anyone who “knowingly and willfully deprives, defrauds or attempts to deprive or defraud the residents of a state<https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=52-USC-80204913-1680128472&term_occur=999&term_src=title:52:subtitle:II:chapter:205:section:20511> of a fair and impartially conducted election<https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=52-USC-17132519-1680128469&term_occur=999&term_src=title:52:subtitle:II:chapter:205:section:20511> process” is breaking the law<https://www.law.cornell.edu/uscode/text/52/20511>.
More from me coming soon.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“All 10 living former defense secretaries: Involving the military in election disputes would cross into dangerous territory”<https://electionlawblog.org/?p=120177>
Posted on January 3, 2021 8:36 pm<https://electionlawblog.org/?p=120177> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo oped<https://www.washingtonpost.com/opinions/10-former-defense-secretaries-military-peaceful-transfer-of-power/2021/01/03/2a23d52e-4c4d-11eb-a9f4-0e668b9772ba_story.html> by Ashton Carter, Dick Cheney, William Cohen, Mark Esper, Robert Gates, Chuck Hagel, James Mattis, Leon Panetta, William Perry and Donald Rumsfeld:
Given these factors, particularly at a time when U.S. forces are engaged in active operations around the world, it is all the more imperative that the transition at the Defense Department be carried out fully, cooperatively and transparently. Acting defense secretary Christopher C. Miller and his subordinates — political appointees, officers and civil servants — are each bound by oath, law and precedent to facilitate the entry into office of the incoming administration, and to do so wholeheartedly. They must also refrain from any political actions that undermine the results of the election or hinder the success of the new team.
We call upon them, in the strongest terms, to do as so many generations of Americans have done before them. This final action is in keeping with the highest traditions and professionalism of the U.S. armed forces, and the history of democratic transition in our great country.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Ex-GOP Speaker Ryan denounces effort to challenge Electoral College results”<https://electionlawblog.org/?p=120175>
Posted on January 3, 2021 8:33 pm<https://electionlawblog.org/?p=120175> by Rick Hasen<https://electionlawblog.org/?author=3>
The Hill:<https://thehill.com/homenews/house/532443-ex-gop-speaker-ryan-denounces-effort-to-challenge-electoral-college-results>
Former Speaker Paul Ryan<https://thehill.com/people/paul-ryan> (R-Wis.) on Sunday blasted Congressional Republicans’ efforts to overturn the results of the 2020 election.
“Efforts to reject the votes of the Electoral College and sow doubt about Joe Biden<https://thehill.com/people/joe-biden>’s victory strike at the foundation of our republic. It is difficult to conceive of a more anti-democratic and anti-conservative act than a federal intervention to overturn the results of state-certified elections and disenfranchise millions of Americans,” Ryan said in a statement.
“The Trump campaign had ample opportunity to challenge election results, and those efforts failed from lack of evidence,” the statement continues. “The legal process was exhausted, and the results were decisively confirmed. The Department of Justice, too, found no basis for overturning the result. If states wish to reform their processes for future elections, that is their prerogative. But Joe Biden’s victory is entirely legitimate.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Federal appeals court tosses Gohmert suit aimed at overturning 2020 election results”<https://electionlawblog.org/?p=120173>
Posted on January 3, 2021 8:27 pm<https://electionlawblog.org/?p=120173> by Rick Hasen<https://electionlawblog.org/?author=3>
Politico:<https://www.politico.com/news/2021/01/01/louie-gohmert-lawsuit-pence-453387>
A federal appeals court has thrown out GOP Rep. Louie Gohmert’s last-ditch attempt to subvert President-elect Joe Biden’s victory, his second rejection in two days in the Texas lawmaker’s attempt to empower Vice President Mike Pence to overturn the results.
The 5th Circuit Court of Appeals gave very short shrift to Gohmert’s legal effort, dismissing it summarily in a one-paragraph opinion issued Saturday evening.
The unsigned decision noted the district court’s ruling that Gohmert and 11 Arizona Republicans — who would have been electors for President Donald Trump — lacked legal standing to pursue the case.
“We need say no more, and we affirm the judgment essentially for the reasons stated by the district court,” the appeals court panel wrote. “We express no view on the underlying merits or on what putative party, if any, might have standing.”
The judges who rejected Gohmert’s appeal were all Republican appointees. The panel included Reagan appointees Patrick Higginbottom and Jerry Smith, as well as Trump appointee Andrew Oldham.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
#NY22: “Brindisi, Tenney argue, vote by vote, in epic nail-biter. How perfect does a voter have to be?”<https://electionlawblog.org/?p=120171>
Posted on January 3, 2021 8:23 pm<https://electionlawblog.org/?p=120171> by Rick Hasen<https://electionlawblog.org/?author=3>
Syracuse.com reports.<https://www.syracuse.com/politics/cny/2021/01/brindisi-tenney-argue-vote-by-vote-in-epic-nail-biter-how-perfect-does-a-voter-have-to-be.html?fbclid=IwAR2LHUZRre69uMxmCdszsuIihJvdcfMqoR-Fe3CEPThsbE5rPaikRgEaexo>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Congress adopts rules governing Jan. 6 Electoral College count”<https://electionlawblog.org/?p=120168>
Posted on January 3, 2021 8:19 pm<https://electionlawblog.org/?p=120168> by Rick Hasen<https://electionlawblog.org/?author=3>
Politico:<https://www.politico.com/news/2021/01/03/congress-rules-electoral-college-count-454023>
The rules of Congress’ Jan. 6 session governing the counting of Electoral College votes will remain identical to those used for decades, under a resolution adopted Sunday by the House and Senate.
The rules, first obtained by POLITICO, <https://www.politico.com/f/?id=00000176-c96a-d162-a7ff-e96e76a90000> were passed on voice votes in both chambers, in keeping with recent history in which they’ve been uncontroversial afterthoughts in the process of finalizing the results of presidential elections.
As dozens of Republicans in the House and Senate threaten to challenge President-elect Joe Biden’s victory — citing baseless claims of widespread fraud and irregularities — the rules have taken on new prominence, but none of those Republicans sought to block the adoption of the rules, even though some had supported an effort to block them in court.
The rules were introduced amid the first indications of GOP pushback to the election challenges inside the House, where dozens of Republicans are embracing President Donald Trump’s push to object to the election’s certification.
A group of seven House Republicans — including Freedom Caucus members such as Ken Buck (Colo.) and Chip Roy (Texas) as well as Rep.-elect Nancy Mace (S.C.) and libertarian Rep. Thomas Massie (R-Ky.) — put out a rare and lengthy statement Sunday afternoon opposing the effort to challenge the election. The statement was also signed by Reps. Kelly Armstrong (R-N.D.), Mike Gallagher (R-Wis.) and Tom McClintock (R-Calif.).
They argue that the constitution makes clear that states — not Congress — are responsible for selecting electors, though they said they “are outraged at the significant abuses in our election system.”
“We must respect the states’ authority here,” the lawmakers wrote in their statement, obtained by POLITICO. “Though doing so may frustrate our immediate political objectives, we have sworn an oath to promote the Constitution above our policy goals. We must count the electoral votes submitted by the states.”
See also this Liz Cheney memo<https://twitter.com/guypbenson/status/1345814841282486272?s=20>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Bipartisan group of senators: The election is over”<https://electionlawblog.org/?p=120166>
Posted on January 3, 2021 8:17 pm<https://electionlawblog.org/?p=120166> by Rick Hasen<https://electionlawblog.org/?author=3>
The Hill:<https://thehill.com/homenews/senate/532432-bipartisan-group-of-senators-the-election-is-over>
A bipartisan group of senators on Sunday urged their colleagues to support the Electoral College vote, as at least a dozen GOP senators prepare to challenge the election results on Wednesday.
GOP Sens. Susan Collins<https://thehill.com/people/susan-collins> (Maine), Bill Cassidy<https://thehill.com/people/bill-cassidy> (La.), Lisa Murkowski<https://thehill.com/people/lisa-murkowski> (Alaska) and Mitt Romney<https://thehill.com/people/willard-mitt-romney> (Utah) and Democratic Sens. Joe Manchin<https://thehill.com/people/joe-manchin> (W.Va.), Mark Warner<https://thehill.com/people/mark-warner> (Va.), Jeanne Shaheen<https://thehill.com/people/jeanne-shaheen> (N.H.), Maggie Hassan<https://thehill.com/people/margaret-maggie-hassan> (N.H.), Dick Durbin<https://thehill.com/people/dick-durbin> (Ill.) and Independent Sen. Angus King<https://thehill.com/people/angus-king> (I-Maine) said in a joint statement that the “election is over.”
“At this point, further attempts to cast doubt on the legitimacy of the 2020 Presidential election are contrary to the clearly expressed will of the American people and only serve to undermine Americans’ confidence in the already determined election results,” they said.
“The voters have spoken, and Congress must now fulfill its responsibility to certify the election results. …. It is time to move forward,” they added.
The joint statement comes a day after 11 GOP senators, led by Sen. Ted Cruz<https://thehill.com/people/ted-cruz> (R-Texas), said they would support challenges to the Electoral College results on Wednesday, when Congress convenes a joint session to formally count the vote.
Combined with Sen. Josh Hawley<https://thehill.com/people/joshua-josh-hawley> (R-Mo.), who had already said he plans to object, that means at least 12 GOP senators will support attempts to overturn President-Elect Joe Biden<https://thehill.com/people/joe-biden>’s win, after he received 306 Electoral College votes to President Trump<https://thehill.com/people/donald-trump>’s 232.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“‘Exercise in futility’: Republicans lambaste Hawley’s push to challenge election”<https://electionlawblog.org/?p=120164>
Posted on January 3, 2021 8:14 pm<https://electionlawblog.org/?p=120164> by Rick Hasen<https://electionlawblog.org/?author=3>
Politico<https://www.politico.com/news/2021/01/01/republicans-hawley-election-challenge-453362>:
Multiple Senate Republicans unloaded on an effort led by Sen. Josh Hawley to challenge Joe Biden’s election victory as the party hurtles toward its most consequential confrontation with Donald Trump of his entire presidency.
Hawley (R-Mo.) denied that he was trying to overturn the election by challenging the certification of at least one state and forcing the Senate into an up-or-down vote on Biden’s wins. He said he was merely trying to voicehis frustration with the election results, arguing this is his one chance “to stand and be heard.”
But some of his colleagues are thoroughly unimpressed.
“I think it’s awful. I am going to support my oath to the Constitution. That’s the loyalty test here,” said Sen. Lisa Murkowski (R-Alaska).
Sen. Mitt Romney (R-Utah) called Hawley’s move “disappointing and destructive. And borrowing from Ben Sasse it’s ambition pointing a gun at the head of democracy.” Sasse (R-Neb.) said this week that “adults don’t point a loaded gun at the heart of legitimate self-government.”
“I’m going to vote to certify the election,” said Sen. Roger Wicker (R-Miss.) of Hawley’s effort. “I don’t think it’s a good idea and I don’t understand his reasoning.”
Already it’s become clear the effort will fail given the public opposition from those senators and others like Sens. Shelly Moore Capito (R-W.Va.), Susan Collins (R-Maine) and Richard Burr (R-N.C.), who flatly said “no” Friday when asked if he would join Hawley. A simple majority is enough to certify Biden’s win, and there are 48 Senate Democrats….
Still, not everyone is dismissing the challenge to Biden’s certification. Sen. Ron Johnson (R-Wis.) said earlier this week he supports Hawley’s effort.
And Sens. Mike Braun (R-Ind.) and Marsha Blackburn (R-Tenn.) both said they were still weighing their options. Blackburn argued that “people are quite concerned about voter fraud and transparency” and Braun said he’s “still thinking about what to do.”
“It’s a protest vote only. Because in my opinion there’s zero chance that anything will come from it. The House is not going to overturn and I don’t think you’ll even get close in the Senate,” Braun argued.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
AALS Election Law Section Distinguished Scholarship Award Winners<https://electionlawblog.org/?p=120161>
Posted on January 3, 2021 8:10 pm<https://electionlawblog.org/?p=120161> by Rick Hasen<https://electionlawblog.org/?author=3>
Announcement via email:
The Section on Election Law at AALS is pleased to announce the recipients of its 2020 Distinguished Scholarship Award in Election Law. The winners will be honored at the section’s annual panel on Wednesday, January 6th, from 11:00 am to 12:15 pm and again individually at the section’s networking event on Thursday, January 7th, from 12:15 to 1:15 pm.<webextlink://The%20winners%20will%20be%20honored%20at%20the%20section's%20annual%20panel%20on%20Wednesday,%20January%206th,%20from%2011:00%20am%20to%2012:15%20pm%20and%20again%20individually%20at%20the%20section's%20networking%20event%20on%20Thursday,%20January%207th,%20from%2012:15%20to%201:15%20pm.>
Congratulations to each of the winners.
Winner: Nicholas O. Stephanopoulos, Disparate Impact, Unified Law,<https://www.yalelawjournal.org/pdf/Stephanopoulos_3rua1o85.pdf> 128 Yale L.J. 1566 (2019).
From the judges: “Stephanopoulos’s provocative article suggests that courts should treat vote denial claims brought under Section 2 of the Voting Rights Act using the same disparate impact analysis that they use to resolve employment discrimination claims under Title VII of the Civil Rights Act and housing discrimination claims under the Fair Housing Act. This proposal cuts against recent developments in lower courts that find a Section 2 violation only when an electoral practice produces a disparate racial impact through its interaction with prior social and historical discrimination. While there is much to be said for the traditional approach normatively, Stephanopoulos highlights a series of complications and uncertainties in its application. Significantly, he emphasizes how it leads to decisions in which all election practices that produce a racially disparate impact are impermissible, a result, Stephanopoulos argues, that stands in tension with current constitutional doctrine. By contrast, employing a unified approach to disparate impact analysis across different statutory schemes would allow some practices to be upheld and others struck down by more modestly shifting the burden to the states to justify why their racially discriminatory practices are needed in the first place. Stephanopoulos makes his case for the unification of disparate impact law on both practical and normative grounds in a comprehensive, mature piece of scholarship that combines strong and insightful large-scale thinking with careful doctrinal analysis, and in the end offers a proposal that is both novel and elegant. The article is masterful in its breadth and was a pleasure to read.”
Honorable Mention:Justin Levitt. Citizenship and the Census, 119 Colum. L. Rev. 1355<https://columbialawreview.org/wp-content/uploads/2019/07/Levitt-CITIZENSHIP_AND_THE_CENSUS.pdf> (2019).
From the judges: “Levitt’s article presents a clear-eyed view of the Census Bureau’s decision to request information about the citizenship status of Census respondents in 2020. This article was as careful as it was timely, as it was written not long before the Supreme Court validated Levitt’s observation that the rationale for adding a citizenship question to the Census was contrived. Levitt’s article lays out in detail why adding a citizenship question is unnecessary for VRA enforcement, explores how such a question might shift political representation and power in American politics, and outlines how it could backfire in those states that most strongly support adding the citizenship question. Levitt’s careful analysis draws the reader’s attention to the various ways in which our technocratic statistical infrastructure has been weaponized in the fight for political representation. The end result is a first-rate article that masterfully illustrates how the minutiae of bureaucratic protocol contributes to democratic backsliding ”
Honorable Mention:Joshua S. Sellers & Erin A. Scharff, Preempting Politics: State Power and Local Democracy,<https://review.law.stanford.edu/wp-content/uploads/sites/3/2020/05/Sellers-Scharff-72-Stan.-L.-Rev.-1361.pdf> 72 Stan. L. Rev. 1361 (2020).
From the judges: “Joshua Sellers and Erin Scharff’s article examines the scope that local authorities have to determine the structure of their local political institutions in the face of potentially preemptive state legislation. Such conflicts – concerning issues such as the size of local councils, whether certain officials are elected or appointed, over the timing of elections and whether they are held on a partisan or nonpartisan basis, and about campaign finance rules, voting methods, and voter eligibility – frequently arise and have significant implications for the working of local democracy. However, they have received relatively little scholarly treatment. Sellers and Scharff provide a careful and thoughtful analysis of the values that should be considered in these ‘structural preemption disputes’ and show how these values can be brought to bear in analyzing specific cases. Their treatment goes beyond assuming a preference for one level of government or the other and instead emphasizes the importance of focusing on the implications of the particular rule for political participation and democratic accountability. This thorough, well-written article contributes a great deal to our knowledge of preemption.”
Congrats all!
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Posted in election law biz<https://electionlawblog.org/?cat=51>
“Cruz disrupting the electoral college count won’t change anything. It can still hurt democracy.”<https://electionlawblog.org/?p=120159>
Posted on January 3, 2021 8:08 pm<https://electionlawblog.org/?p=120159> by Rick Hasen<https://electionlawblog.org/?author=3>
Ned Foley<https://www.washingtonpost.com/opinions/2021/01/02/ted-cruzs-plan-disrupt-congresss-electoral-college-count-wont-change-anything-it-can-still-do-damage-our-democracy/> in WaPo:
Sen. Ted Cruz’s 11th-hour effort to derail certification of Joe Biden’s election victory is the wrong solution to a non-problem at the wrong time. Fortunately, it also won’t succeed, but it nonetheless provides one more alarming sign of the perilous state of our democracy.
Cruz (R-Texas) and 10 colleagues announced Saturday<https://www.washingtonpost.com/politics/2021/01/02/cruz-johnson-9-other-gop-senators-say-they-will-not-vote-certify-electors-unless-audit-is-conducted/?itid=lk_inline_manual_4> that they will vote to challenge electoral college votes in “disputed states” when Congress meets Jan. 6, though it was unclear how many states that will be. In practical effect, the move adds nothing but numbers to the process that Sen. Josh Hawley (R-Mo.) had already vowed to set into motion: two hours of debate, in both the House and Senate, on each state the Republicans challenge.
This will greatly slow what should be a straightforward process, but the bottom line is clear: Unless Vice President Pence, in his presiding role as president of the Senate, were to unexpectedly deviate from the procedures established by Congress in 1887 — a truly lawless move that would be swiftly resisted by senators and representatives of both parties — the outcome remains inevitable.
Nonetheless, the fact that a dozen senators and senators-elect, along with apparently more than 100 House members, want to disrupt congressional ratification of the electoral college result is one more horrendous sign of the severity of the disease afflicting the United States’ democratic system. It will make it even harder for Biden to heal this pathology of partisan polarization, as he has promised to do.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
New Complaint Filed with IRS Against True the Vote for Its Activities During Georgia Midterms<https://electionlawblog.org/?p=120157>
Posted on January 3, 2021 7:57 pm<https://electionlawblog.org/?p=120157> by Rick Hasen<https://electionlawblog.org/?author=3>
Details here.<https://campaignforaccountability.org/new-complaint-reveals-illegal-partnership-between-georgia-gop-fraudulent-nonprofit/>
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Posted in tax law and election law<https://electionlawblog.org/?cat=22>
Blockbuster Washington Post Story on Trump Phone Call, with Comments from Ned Foley and Me<https://electionlawblog.org/?p=120153>
Posted on January 3, 2021 6:15 pm<https://electionlawblog.org/?p=120153> by Richard Pildes<https://electionlawblog.org/?author=7>
Amy Gardner with a huge scoop<https://www.washingtonpost.com/politics/trump-raffensperger-call-georgia-vote/2021/01/03/d45acb92-4dc4-11eb-bda4-615aaefd0555_story.html>:
President Trump urged fellow Republican Brad Raffensperger, the Georgia secretary of state, to “find” enough votes to overturn his defeat in an extraordinary one-hour phone call Saturday that legal scholars described as a flagrant abuse of power and a potential criminal act.
The Washington Post obtained a recording<https://www.washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html?itid=lk_inline_manual_3> of the conversation in which Trump alternately berated Raffensperger, tried to flatter him, begged him to act and threatened him with vague criminal consequences if the secretary of state refused to pursue his false claims, at one point warning that Raffensperger was taking “a big risk.”…
At another point, Trump said: “So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have. Because we won the state.”
He later added: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”…
Additionally, Trump’s apparent threat of criminal consequences if Raffensperger failed to act could be seen as an attempt at extortion and a suggestion that he might deploy the Justice Department to launch an investigation, they said.
“The president is either knowingly attempting to coerce state officials into corrupting the integrity of the election or is so deluded that he believes what he’s saying,” said Richard H. Pildes, a constitutional law professor at New York University, who noted that Trump’s actions may have violated several federal statutes.
But Pildes said Trump’s clearer transgression is a moral one, and he emphasized that focusing on whether he committed a crime could deflect attention from the “simple, stark, horrific fact that we have a president trying to use the powers of his office to pressure state officials into committing election fraud to keep him in office.”
Edward B. Foley, a law professor at Ohio State University, said the legal questions are murky, and it could be difficult to prove that Trump knew he was encouraging illegal behavior. But Foley also emphasized that the call was “inappropriate and contemptible.”
“He was already tripping the emergency meter,” Foley said. “So we were at 12 on a scale of 1 to 10, and now we’re at 15.”..
“Why don’t you want to find this, Ryan?” he asked of Germany. “What’s wrong with you? I heard your lawyer is very difficult, actually, but I’m sure you’re a good lawyer. You have a nice last name.”
But he continued to make his case in repetitive fashion, until finally, after roughly an hour, Raffensperger put an end to the conversation: “Thank you, President Trump, for your time.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
The #1 2020 Washington Post (Monkey Cage) Piece Was Mine on the Death or Withdrawal of a Presidential Candidate Before the Election<https://electionlawblog.org/?p=120151>
Posted on January 2, 2021 1:20 pm<https://electionlawblog.org/?p=120151> by Richard Pildes<https://electionlawblog.org/?author=7>
I was quite surprised to learn that my interview with Josh Tucker on these questions was far and away the most viewed piece on the Washington Post’s Monkey Cage blog in 2020.
I had done a similar interview in 2016 and I’m glad Josh asked me to do an updated one this summer. I haven’t seen a breakdown of how many people read the interview before v. after President Trump came down with COVID19. The top 10 list from the Washington Post is here<https://www.washingtonpost.com/politics/2020/12/31/these-were-our-10-most-popular-posts-2020/>, and the excerpt on my interview follows:
1. What happens if a U.S. presidential candidate withdraws or dies before the election is over?<https://www.washingtonpost.com/politics/2020/10/02/were-final-stages-presidential-election-what-happens-if-candidate-withdraws-or-dies/?itid=lk_inline_manual_32>
But by far our biggest hit of the year was TMC editor Joshua Tucker’s interview with Richard Pildes explaining what would happen if either Trump or Biden were to die during the campaign. With two candidates in their 70s campaigning during a lethal pandemic, readers found this post every day, all summer and fall. When Trump was hospitalized with the virus, readership went through the roof.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“A 2020 Surprise: Fewer Absentee Ballots Rejections Than Expected”<https://electionlawblog.org/?p=120148>
Posted on December 31, 2020 5:10 pm<https://electionlawblog.org/?p=120148> by Rick Hasen<https://electionlawblog.org/?author=3>
Pam Fessler <https://www.npr.org/2020/12/31/951249068/a-2020-surprise-fewer-absentee-ballots-rejections-than-expected?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social> for NPR.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“McConnell calls Jan. 6 certification his ‘most consequential vote'”<https://electionlawblog.org/?p=120146>
Posted on December 31, 2020 2:50 pm<https://electionlawblog.org/?p=120146> by Rick Hasen<https://electionlawblog.org/?author=3>
Axios:<https://www.axios.com/mcconnell-calls-jan-6-certification-his-most-consequential-vote-323cd74c-7dfa-4420-bd32-32a36398dadc.html?utm_source=twitter&utm_medium=social&utm_campaign=organic&utm_content=1100>
Behind the scenes: McConnell said on the call that the January 6th vote is “a vote of conscience,” these sources said.
· A source paraphrased McConnell as saying, “I’m finishing 36 years in the Senate and I’ve cast a lot of big votes.” including over war and impeachment.
· “And in my view, just my view,” McConnell said, “this is will be the most consequential I have ever cast.”
· “The context was McConnell saying we’re being asked to overturn the results after a guy didn’t get as many electoral votes and lost by 7 million popular votes,” the source said.
Between the lines: Many Republican senators are furious at Hawley for forcing them to take what Trump is setting up as the ultimate loyalty test on January 6th.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Vice President Pence Files Straightforward Brief Opposing Rep. Gohmert Lawsuit Seeking to Give Pence Unlimited Powers to Decide on Electoral College Votes (Stop Worrying)<https://electionlawblog.org/?p=120144>
Posted on December 31, 2020 2:48 pm<https://electionlawblog.org/?p=120144> by Rick Hasen<https://electionlawblog.org/?author=3>
This short brief is well done<https://www.courtlistener.com/recap/gov.uscourts.txed.203073/gov.uscourts.txed.203073.18.0_1.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Trump has yet to accept the election results months after Republicans said he would”<https://electionlawblog.org/?p=120142>
Posted on December 31, 2020 12:43 pm<https://electionlawblog.org/?p=120142> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo<https://www.washingtonpost.com/politics/2020/12/31/trump-has-yet-accept-election-results-months-after-republicans-said-he-would/>:
The day after President Trump in late September refused to commit<https://www.washingtonpost.com/politics/trump-transfer-of-power/2020/09/23/be6954d0-fdf0-11ea-b555-4d71a9254f4b_story.html?itid=lk_inline_manual_2> to a peaceful transition of power, congressional Republicans were quick to reassure the nation he would.
“The winner of the November 3rd election will be inaugurated on January 20th,” Senate Majority Leader Mitch McConnell (R-Ky.) tweeted<https://twitter.com/senatemajldr/status/1309126971058794499?s=20> at the time.
“Let me be very clear to you: It will be peaceful,” House Minority Leader Kevin McCarthy (R-Calif.) said.
“If Republicans lose, we will accept that result,” Sen. Lindsey O. Graham (R-S.C.) told Fox News. “ … If the Supreme Court rules in favor of Joe Biden, I will accept that result.”
“I think that the president will accept the result, but you’ve got to make sure that it’s fair,” Sen. Thom Tillis (R-N.C.) said.
Since then, Trump and the vast majority<https://www.washingtonpost.com/graphics/2020/politics/congress-republicans-trump-election-claims/?itid=lk_interstitial_manual_8&itid=lk_inline_manual_9> of congressional Republicans have yet to publicly accept the results of the presidential election nearly two months after it was called for Joe Biden. You can watch examples of Republicans promising that the president would accept the results of the election in the video above.
The Republican Party continues refusing to accept the election results even as state and federal investigations<https://apnews.com/article/barr-no-widespread-election-fraud-b1f1488796c9a98c4b1a9061a6c7f49d> have found little<https://www.washingtonpost.com/politics/voter-fraud-investigations-2020/2020/12/22/bdbe541c-42de-11eb-b0e4-0f182923a025_story.html?itid=lk_inline_manual_11> or no<https://www.ajc.com/politics/no-fraud-georgia-audit-confirms-authenticity-of-absentee-ballots/QF2PTOGHLNDLNDJEWBU56WEQHM/> voter fraud and as Trump has lost 59 of 60 election lawsuits<https://www.nytimes.com/2020/12/26/us/politics/republicans-voter-fraud.html?action=click&module=Top%20Stories&pgtype=Homepage> filed by his campaign and political allies, including two<https://www.washingtonpost.com/politics/courts_law/supreme-court-trump-pennsylvania-election-results/2020/12/08/4d39e16c-397d-11eb-98c4-25dc9f4987e8_story.html?itid=lk_inline_manual_11> filed at the U.S. Supreme Court<https://www.washingtonpost.com/politics/courts_law/supreme-court-texas-election-trump/2020/12/11/bf462f22-3bc6-11eb-bc68-96af0daae728_story.html?itid=lk_inline_manual_11>.
Among the roughly three dozen<https://www.washingtonpost.com/graphics/2020/politics/congress-republicans-trump-election-claims/?itid=lk_interstitial_manual_8&itid=lk_inline_manual_12> congressional Republicans who have publicly acknowledged Biden’s win, many waited days or weeks<https://twitter.com/RiegerReport/status/1330920225018159112> after the election was called before doing so. It was a stark departure<https://www.washingtonpost.com/politics/2020/11/13/republicans-were-ready-accept-election-results-lot-faster-2016/?itid=lk_inline_manual_12> from the public congratulations that many of those same Republicans gave to then-President-elect Trump in the hours and days after the 2016 election was called.
That so many elected Republicans still refuse to accept the election’s outcome is perhaps not surprising, given how many<https://www.washingtonpost.com/politics/2020/12/29/trailer-elections-watch-2021/?itid=lk_inline_manual_14> Trump supporters falsely think<https://www.washingtonpost.com/graphics/2020/politics/elections-reckoning/?itid=lk_inline_manual_14> that Biden did not legitimately win the election.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, Uncategorized<https://electionlawblog.org/?cat=1>
“Judge rolls back order on Georgia runoff voter challenges”<https://electionlawblog.org/?p=120140>
Posted on December 31, 2020 12:41 pm<https://electionlawblog.org/?p=120140> by Rick Hasen<https://electionlawblog.org/?author=3>
Politico reports.<https://www.politico.com/story/2020/12/31/georgia-runoff-voter-challenges-1526009>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Electionline’s “In and Out” List<https://electionlawblog.org/?p=120138>
Posted on December 31, 2020 10:51 am<https://electionlawblog.org/?p=120138> by Rick Hasen<https://electionlawblog.org/?author=3>
Find it here<https://electionline.org/electionline-weekly/?utm_medium=email&utm_campaign=December%2031%202020&utm_content=December%2031%202020+CID_cfb06ba5e8669f432aace2da38793134&utm_source=Campaign%20Monitor&utm_term=Read%20More#tab-1>.
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Posted in election law "humor"<https://electionlawblog.org/?cat=52>
Supreme Court Will Hear Arizona Voting Rights Case, Brnovich v. DNC, on March 2<https://electionlawblog.org/?p=120136>
Posted on December 31, 2020 8:08 am<https://electionlawblog.org/?p=120136> by Rick Hasen<https://electionlawblog.org/?author=3>
This could be an occasion for the Court to cut back on the Act, but I think the Court will likely use the case to reject the finding of intentional discrimination by Arizona.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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Irvine, CA 92697-8000
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http://electionlawblog.org<http://electionlawblog.org/>
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