[EL] ELB News and Commentary 1/5/21

[Rick Hasen]

“A Georgia election official debunked Trump’s claims of voter fraud, point by point.”<https://electionlawblog.org/?p=120219>
Posted on January 4, 2021 8:39 pm<https://electionlawblog.org/?p=120219> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports<https://www.nytimes.com/2021/01/04/us/politics/trump-georgia-election-fraud.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


My Appearance on the PBS News Hour: “Trump’s attempt to ‘manufacture votes’ in Georgia raises legal questions”<https://electionlawblog.org/?p=120217>
Posted on January 4, 2021 8:23 pm<https://electionlawblog.org/?p=120217> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch my interview with Judy Woodruff here.<https://www.pbs.org/newshour/show/trumps-attempt-to-manufacture-votes-in-georgia-raises-legal-questions>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Trump’s Apportionment Gambit for Census to Exclude Some Non-Citizens From Count Appears Dead as Numbers Won’t Be Ready Before Trump Leaves Office<https://electionlawblog.org/?p=120215>
Posted on January 4, 2021 5:18 pm<https://electionlawblog.org/?p=120215> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/01/04/trump-administration-census-apportionment-454907>

A Justice Department attorney said Monday that the census population count used to apportion House seats for the next decade may not be ready until February, which would thwart President Donald Trump’s plans to exclude certain immigrant populations from the total.

John Coghlan, a deputy assistant attorney general who is representing the government in the case, said that as of late December, the Census Bureau did not expect to be able to release apportionment data until Feb. 9, well after President-elect Joe Biden is inaugurated.

The Justice Department also said that date could be pushed back further yet because of potential new anomalies discovered within the data.

A delivery date after noon on Jan. 20, once Biden is sworn in, would effectively end Trump’s attempts to exclude undocumented immigrants from the total. Biden has said he opposed the plan, and historically those people have been included in the count.
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Posted in census litigation<https://electionlawblog.org/?cat=125>


“Pence’s Choice: Side With the Constitution or His Boss”<https://electionlawblog.org/?p=120213>
Posted on January 4, 2021 5:14 pm<https://electionlawblog.org/?p=120213> by Rick Hasen<https://electionlawblog.org/?author=3>

Annie Karni and Maggie Haberman in the NYT<https://www.nytimes.com/2021/01/04/us/politics/pence-trump-election-congress.html?referringSource=articleShare>:

As president of the Senate, Mr. Pence is expected to preside over the pro forma certification of the Electoral College vote count in front of a joint session of Congress. It is a constitutionally prescribed, televised moment in which Mr. Pence will name the winner of the 2020 presidential election, Joseph R. Biden Jr.

It is also a moment some of Mr. Pence’s advisers have been bracing themselves for ever since the president lost the election and stepped up his baseless claims of widespread voter fraud. There is no chance of Mr. Pence not being there, people close to him said. Mr. Pence’s aides have told people that they view the vice president’s role as largely ceremonial.

“I know we all have got our doubts about the last election,” Mr. Pence said Monday in Georgia, attempting to assuage Trump supporters. “I want to assure you that I share the concerns of millions of Americans about voting irregularities. I promise you, come this Wednesday, we will have our day in Congress.”

It was not clear, perhaps by design, what he meant. Mr. Pence does not have unilateral power to affect the outcome of Wednesday’s proceedings. But he has carefully tried to look like he is loyally following the president’s lead even as he goes through a process that is expected to end with him reading out a declaration that Mr. Biden is the winner….

On Monday, after Mr. Pence returned from Georgia, the vice president and Mr. Trump were expected to hear a last-minute pitch at the White House from John Eastman, another Trump lawyer. Mr. Pence also met with Senate parliamentarians for hours on Sunday to prepare himself and the president for what he would say while on the Senate floor.

The fact that Mr. Pence’s role is almost entirely scripted by those parliamentarians is not expected to ease a rare moment of tension between himself and the president, who has come to believe Mr. Pence’s role will be akin to that of chief justice, an arbiter who plays a role in the outcome. In reality, it will be more akin to the presenter opening the Academy Award envelope and reading the name of the movie that won Best Picture, with no say in determining the winner….

One person close to Mr. Pence described Wednesday’s duties as gut-wrenching, saying that he would need to balance the president’s misguided beliefs about government with his own years of preaching deference to the Constitution.

Members of the vice president’s circle expect that Mr. Pence will follow the rules while on the Senate floor and play his ceremonial role as scripted, aides said. But after that, he will have to compensate by showing his fealty to Mr. Trump.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, electoral college<https://electionlawblog.org/?cat=44>


“Inside McConnell’s handling of Trump’s election challenge”<https://electionlawblog.org/?p=120211>
Posted on January 4, 2021 3:53 pm<https://electionlawblog.org/?p=120211> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/01/04/mcconnell-trump-election-challenge-454614>

Mitch McConnell explicitly warned Senate Republicans not to challenge Joe Biden’s presidential win. But now that a dozen of his members are going there, the GOP leader is taking his thumb off the scale.

The Kentucky Republican actively sought to avoid a divisive circus over the election results, making his position well-known throughout the GOP conference. Yet senators and aides say he is not actively whipping his members to side against Sens. Josh Hawley (R-Mo.) and Ted Cruz (R-Texas), who are leading the electoral objections in the Senate. Instead, he’s offering guidance when it’s sought, fielding calls from at least half the Senate GOP conference, according to a source familiar with the matter.

McConnell told senators on a recent conference call that “this is a very difficult decision for each one of you, you each have to make it yourselves,” recounted Sen. Kevin Cramer (R-N.D.). “‘I’ve voted twice on declarations of war.’ And he said, ‘this is right up there.’ But … there’s a lot of noise out there and I won’t judge anybody for their decision.’”

It’s the latest and highest-profile example of the GOP leader’s subtle-post election effort to lead the party as President Donald Trump fractures Republicans. Tuesday’s Georgia run-off faces will determine whether McConnell is majority leader for two more years and may be as much a referendum on his moves over the past few weeks as they are on Trump’s erratic fight against the election results.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s Call To Georgia Election Officials Sparks Debate Over Legality, Ethics”<https://electionlawblog.org/?p=120209>
Posted on January 4, 2021 3:49 pm<https://electionlawblog.org/?p=120209> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR reports<https://www.npr.org/2021/01/04/953151921/trumps-call-to-georgia-election-officials-sparks-debate-over-legality-ethics?utm_campaign=politics&utm_term=nprnews&utm_source=twitter.com&utm_medium=social>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Judge weighing disputed ballots in undecided NY House race”<https://electionlawblog.org/?p=120207>
Posted on January 4, 2021 3:43 pm<https://electionlawblog.org/?p=120207> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/article/new-york-coronavirus-pandemic-campaigns-claudia-tenney-house-elections-9c24389ba8e5eeb2ba696f296c05c7ea?mc_cid=c178eca98f&mc_eid=5cf3f23864>

Tabulation of the votes has taken so long, the winner missed the opening day of the 117th Congress on Sunday. The seat representing New York’s 22nd Congressional District, previously occupied by Brindisi, is empty for now.

A string of recordkeeping problems had led to confusion over vote totals, as counties in the district struggled with a historic deluge of absentee ballots cast by mail because of the coronavirus pandemic.

Counties sent in shifting and at times incomplete tallies. They also had problems with a process that allows candidates to object to certain ballots. In some cases, counties lost records on ballot objections when the sticky notes on which they had been written lost their adhesiveness.

DelConte in December ordered counties to fix errors they made when first counting ballots or count ballots again with candidates present.

While the judge criticized counties for carelessness, he has said there was no evidence of voter fraud.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Video of My Appearance Today on CNN Talking About Trump Call Pressuring Georgia Election Officials to “Find” Votes to Overturn the Election<https://electionlawblog.org/?p=120205>
Posted on January 4, 2021 12:26 pm<https://electionlawblog.org/?p=120205> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch here:<https://www.youtube.com/watch?v=VJQvxzzrjmE>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“An Insurgency From Inside the Oval Office”<https://electionlawblog.org/?p=120203>
Posted on January 4, 2021 11:35 am<https://electionlawblog.org/?p=120203> by Rick Hasen<https://electionlawblog.org/?author=3>

Peter Baker NYT analysis<https://www.nytimes.com/2021/01/04/us/politics/trump-biden-inauguration.html>:

President Trump’s relentless effort to overturn the result of the election that he lost has become the most serious stress test of American democracy in generations, led not by outside revolutionaries intent on bringing down the system but by the very leader charged with defending it.

In the 220 years since a defeated John Adams turned over the White House to his rival, firmly establishing the peaceful transfer of power as a bedrock principle, no sitting president who lost an election<https://www.nytimes.com/2020/11/07/us/politics/biden-election.html> has tried to hang onto power by rejecting the Electoral College and subverting the will of the voters<https://www.nytimes.com/2021/01/03/us/politics/trump-raffensperger-call-georgia.html> — until now. It is a scenario at once utterly unthinkable and yet feared since the beginning of Mr. Trump’s tenure.

The president has gone well beyond simply venting his grievances or creating a face-saving narrative to explain away a loss, as advisers privately suggested he was doing in the days after the Nov. 3 vote, but instead has pressed the boundaries of tradition, propriety and the law<https://www.nytimes.com/2021/01/03/us/politics/trump-call-georgia.html?action=click&module=RelatedLinks&pgtype=Article> to find any way he can to cling to office beyond his term that expires in two weeks. That he is almost certain to fail does not mitigate the damage he is doing to democracy by undermining public faith in the electoral system.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Federal District Court Dismisses Lawsuit, Excoriates Wisconsin Voters Alliance for Attempt to Overturn the Results of the Presidential Election Through Litigation<https://electionlawblog.org/?p=120201>
Posted on January 4, 2021 11:05 am<https://electionlawblog.org/?p=120201> by Rick Hasen<https://electionlawblog.org/?author=3>

Start here<https://www.courtlistener.com/recap/gov.uscourts.dcd.225330/gov.uscourts.dcd.225330.10.0_1.pdf>:

Plaintiffs’ aims in this election challenge are bold indeed: they ask this Court to declare unconstitutional several decades-old federal statutes governing the appointment of electors and the counting of electoral votes for President of the United States; to invalidate multiple state statutes regulating the certification of Presidential votes; to ignore certain Supreme Court decisions; and, the coup de grace, to enjoin the U.S. Congress from counting the electoral votes on January 6, 2021, and declaring Joseph R. Biden the next President.

Voter groups and individual voters from the states of Wisconsin, Pennsylvania, Georgia, Michigan, and Arizona have brought this action against Vice President Michael R. Pence, in his official capacity as President of the Senate; both houses of Congress and the Electoral College itself; and various leaders of the five aforementioned states. Simultaneous with the filing of their Complaint, Plaintiffs moved this Court to preliminarily enjoin the certifying of the electors from the five states and the counting of their votes. In addition to being filed on behalf of Plaintiffs without standing and (at least as to the state Defendants) in the wrong court and with no effort to even serve their adversaries, the suit rests on a fundamental and obvious misreading of the Constitution. It would be risible were its target not so grave: the undermining of a democratic election for President of the United States. The Court will deny the Motion.

Read the whole opinion and let me know why these lawyers should not face sanctions.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Election Day Voting in 2020 Took Longer in America’s Poorest Neighborhoods”<https://electionlawblog.org/?p=120199>
Posted on January 4, 2021 10:14 am<https://electionlawblog.org/?p=120199> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT’s The UpShot reports<https://www.nytimes.com/interactive/2021/01/04/upshot/voting-wait-times.html?action=click&module=Top%20Stories&pgtype=Homepage>.
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Posted in election administration<https://electionlawblog.org/?cat=18>


U.S. Chamber of Commerce Issues Statement Condemning Effort in Congress to Mess with Election Vote Counting, Warns Against Violent Protests<https://electionlawblog.org/?p=120197>
Posted on January 4, 2021 10:13 am<https://electionlawblog.org/?p=120197> by Rick Hasen<https://electionlawblog.org/?author=3>
U.S. Chamber CEO on Electoral College Vote Counting

FOR IMMEDIATE RELEASE

January 4, 2021

WASHINGTON, D.C. — Thomas J. Donohue, CEO of the U.S. Chamber of Commerce, issued the following statement today ahead of the counting of electoral votes on January 6th and expected political gatherings in Washington D.C.“On November 3rd a record number of Americans voted. Their votes were counted and consistent with state law, in some cases, recounted. More than 50 legal challenges were heard, adjudicated, and resolved. Election results in all 50 states and the District of Columbia were certified and duly appointed electors have met and cast their votes for president and vice president. Efforts by some members of Congress to disregard certified election results in an effort to change the election outcome or to try a make a long-term political point undermines our democracy and the rule of law and will only result in further division across our nation.“The United States of America faces enormous challenges that not only require an orderly transition of administrations, but the focus of the incoming Biden administration and the new Congress, and cooperation across party lines. We urge Congress to fulfill its responsibility in counting the electoral votes, the Trump administration to facilitate an orderly transition for the incoming Biden administration, and all of our elected officials to devote their energies to combatting the pandemic and supporting our economic recovery.“In the coming days, thousands of Americans are expected to gather to voice their views. This is a fundamental right and we urge respect for all those who exercise their constitutional rights. Small businesses, local communities, and our nation pay a steep price when demonstrations turn violent and destructive, so it is critical that these gatherings be peaceful.”
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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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