[EL] “We Can’t Let Our Elections Be This Vulnerable Again”

Tue Jan 5 13:05:40 PST 2021

I agree it would require a look at every state and where there is discretion without judgment or oversight, as with Michigan’s canvassing board.  One thing I hope comes out of this debacle is a bipartisan serious commission to make recommendations for how to make the translation of voters’ votes into countable electoral college votes as clear and fair as possible.

From: James Alcorn <jamesalcorn at gmail.com>
Date: Tuesday, January 5, 2021 at 9:20 AM
To: "sean at impactpolicymanagement.com" <sean at impactpolicymanagement.com>
Cc: Rick Hasen <rhasen at law.uci.edu>, Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] “We Can’t Let Our Elections Be This Vulnerable Again”

Rick,

I appreciated your article in the Atlantic about sensible election reforms. I'm curious about this one recommendation:

For starters, states should eliminate those canvassing boards that serve only a ceremonial role in approving vote totals. The rules for vote counting differ by state, but the general principle should be that only those local and state election administrators who are actually involved in ballot counting should determine the vote totals, subject to judicial oversight. States should eliminate additional bodies that serve no necessary oversight role and can only make mischief.

Having worked in elections and having served on a state elections board that could be called ceremonial for 99% of the elections, I'm curious how others would define which election administrators should be included vs. excluded. Should we only involve civil servants and exclude partisan appointments? I agree with you that the introduction of singular partisan perspectives is a potential weakness in some systems.

I know there are multiple models, but this is the Virginia model:

  *   Poll workers (or officers of election, as we call them in Virginia) count the ballots in polling places. These are a mixture of partisan and nonpartisan appointments.
  *   A nonpartisan, paid General Registrar in each locality compiles and validates the results from the polling places  .
  *   An appointed 3-person Electoral Board, with representatives of the two political parties that favors the Governor's party, adjudicates the provisional ballots and approves the total results for the locality.
  *   Nonpartisan staff for the state department of elections compiles and validates the results from the localities, (identifying mathematical or procedural errors for the localities to correct), then prepares the final results for the State Board of Elections.
  *   An appointed State Board of Elections, with representatives of the two political parties that favors the Governor's party, approves the total results for the election. In 99% of the cases this is purely ceremonial. But, at least in my tenure, the State Board disagreed with the vote totals from one locality. (It was a procedural matter that didn't impact the outcome of the election; but it did change the numerical results.)
Some states counter this by requiring equal representation from the two major parties. (Although I'm sure Richard Winger might have concerns that this approach resolves all issues.) I like where you're going with this idea, but I'm trying to think of a model that minimizes political malfeasance yet also holds the vote counters accountable to the public.

On Mon, Jan 4, 2021 at 12:44 PM <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:
Rick’s piece in Slate includes the following:

“Trump nonetheless continued to pressure Republican state legislators to meet and declare a new slate of electors in his favor. When the legislatures refused, Trump’s team organized rogue Electoral College meetings in disputed states to “vote” for Trump. Those fake Electoral College votes may have been sent into Congress for opening by Vice President Mike Pence in his role presiding over the counting of the votes on Wednesday.”

Has anyone actually seen any of these purported Certificates of Vote or the Certificates of Ascertainment that are supposed to be attached? Be fascinating to get a look at them (for me, at least).

Sean

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Rick Hasen
Sent: Monday, January 4, 2021 12:03 PM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] more news and commentary 1/4/21

“Donald Trump Should Be Prosecuted for His Shakedown of Georgia’s Brad Raffensperger”<https://electionlawblog.org/?p=120195>
Posted on January 4, 2021 8:59 am<https://electionlawblog.org/?p=120195> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2021/01/donald-trump-should-be-prosecuted-georgia-brad-raffensperger.html> for Slate. It begins:

President Donald Trump likely broke both federal and state law in a Saturday phone call during which he encouraged Georgia Secretary of State Brad Raffensperger to “find” enough votes to overturn the state’s election results. The president certainly committed an impeachable offense that is grounds for removing him from the office he will be vacating in less than three weeks, or disqualifying him from future elected office. His tumultuous term will end as it began, with questions as to the legality of conduct connected to manipulating American elections, and a defense based squarely on the idea that Trump’s mind is so warped that he actually believes the nonsense he spews. Trump may never be put on trial for what he did, but a failure to prosecute him may lead to a further deterioration of American democracy….

Aside from being impeachable conduct, Trump’s actions likely violate federal and Georgia law.  A federal statute<https://www.law.cornell.edu/uscode/text/52/20511> makes it a crime when one “knowingly and willfully …  attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by … the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.” A Georgia statute<https://law.justia.com/codes/georgia/2016/title-21/chapter-2/article-15/section-21-2-604> similarly provides that a “person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.”

For both statutes, the easy part for prosecutors would be proving that there was no basis in fact for Georgia election officials to flip the lead in Georgia to Trump by adding 11,780 votes to his totals, giving him one more vote than Biden’s margin of victory. The ballots in that state have been counted, and recounted both by hand and by machine, and Biden’s victory is certain. And as Raffensperger pointed out repeatedly on the call, every court that has investigated Trump’s fraud claims has found them to be completely spurious. Adding 11,780 votes to Trump’s column—or removing legal Biden ballots—would defraud Georgia voters of the actual outcome they chose. Counting fake ballots or removing lawful ones would deprive Georgia voters of a fair and impartially conducted election process. That is the definition of election fraud.

The hard part for prosecutors would be proving Trump’s state of mind, because the statutes require proof of knowledge and intent. Prosecutors would have to show that Trump knew that Biden fairly won the election, and Trump was asking for Georgia officials to commit election fraud. And it’s not clear prosecutors could make that case.

As with so many things in this presidency and president, the question is whether Trump is drinking his own Kool-Aid. Reading the entire one-hour rambling call transcript, it is hard to know if Trump actually believes the fever swamp of debunked conspiracy theories about the election or whether he’s just using the false claims as a cover to get the political results he wants. It’s not much different than Trump’s statements denying Russian election hacking in 2016, his professed ignorance of the aims of QAnon and the Proud Boys, and whether ingesting bleach can protect against coronavirus. And during the Ukraine impeachment saga, of course, nearly every Republican Senator voted to acquit the president on the implausible basis that Trump was merely asking Ukraine to legitimately investigate Joe Biden for possible criminal conduct rather than seeking to corruptly advance his own electoral interests. In all of these cases, Trump’s conspiratorial rantings display either profound ignorance, deep cynicism, or both.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“We Can’t Let Our Elections Be This Vulnerable Again”<https://electionlawblog.org/?p=120193>
Posted on January 4, 2021 8:57 am<https://electionlawblog.org/?p=120193> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://www.theatlantic.com/ideas/archive/2021/01/we-cant-let-our-elections-be-vulnerable-again/617542/> for The Atlantic. It begins:

The 2020 election and its aftermath have laid bare an unhappy truth: Many of the familiar procedures for translating the people’s will into the choice of a president depend on norms of behavior, not laws. Just this past weekend—two months after Election Day—remarkable efforts to mess with election results became apparent, including the revelation of a recording of, on Saturday, President Donald Trump<https://www.washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html> potentially criminally<https://slate.com/news-and-politics/2021/01/donald-trump-should-be-prosecuted-georgia-brad-raffensperger.html> pressuring<https://www.washingtonpost.com/politics/trump-raffensperger-call-georgia-vote/2021/01/03/d45acb92-4dc4-11eb-bda4-615aaefd0555_story.html> Georgia Secretary of State Brad Raffensperger to “find” more than 11,000 votes to flip Georgia’s election results from Joe Biden to the president. And well over 100 Republican representatives and about a dozen<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/> Republican senators appear poised to object to the counting of Electoral College votes on Wednesday for states that Biden won, despite a complete lack of evidence that the results were marred by fraud or irregularities. These efforts are very serious—and very dangerous.

If not for Biden’s significant margin of victory over Trump and for the courageous, politically risky actions of many Republican and Democratic election administrators and elected officials, this Republican attack on American democracy might well have been successful, securing an illegitimate second term for Trump.

To remove the potential for this sort of gamesmanship in certifying and counting each state’s votes for president, the country needs to adopt a number of measures in the next few years to eliminate the power of individuals to interfere with election results. This can be done without opening up larger constitutional issues, such as whether to keep or do away with the Electoral College. Americans shouldn’t have to know the inner workings of the canvassing board of Wayne County, Michigan—or depend on representatives and senators to accurately count votes as states have reported them to Congress—to figure out who will be president.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, electoral college<https://electionlawblog.org/?cat=44>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“A leading historian of U.S. democracy issues an urgent warning”<https://electionlawblog.org/?p=120191>
Posted on January 4, 2021 8:53 am<https://electionlawblog.org/?p=120191> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Sargent:<https://www.washingtonpost.com/opinions/2021/01/04/alexander-keyssar-historian-trump-call-electoral-college/>

Which raises a question: In a future presidential election, if Republicans control both chambers of Congress and similar objections are brought against a victorious Democrat’s electors, mightn’t they succeed in invalidating them?

“It’s become a lot easier to envision that in the last month,” Alexander Keyssar, the leading historian of U.S. democracy, told me. “I find this to be very worrisome — very disturbing.”

This is striking from a cautious academic like Harvard’s Keyssar. His great new book recounting the story of the electoral college<https://www.amazon.com/Why-Still-Have-Electoral-College/dp/0674660153?ots=1&slotNum=0&imprToken=9cbb66a7-4ae5-bf70-731&tag=thneyo0f-20&linkCode=w50>, and his history of the contested right to vote in America<https://www.amazon.com/Right-Vote-Contested-History-Democracy/dp/0465005020/ref=sr_1_1?dchild=1&keywords=alexander+keyssar+democracy&qid=1609762284&s=books&sr=1-1>, are models of meticulous scholarship. The latter recounts the worst democratic breakdowns in our history.

Now Keyssar thinks we’re seeing the portents of another serious breakdown. By seeking to invalidate Biden’s electors, Keyssar warned, Republicans have showed a “willingness” to “go down this path,” making this more likely to “happen again in different circumstances.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“MAGA marchers plot final D.C. stand on Jan. 6”<https://electionlawblog.org/?p=120189>
Posted on January 4, 2021 8:48 am<https://electionlawblog.org/?p=120189> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/01/04/maga-marchers-trump-last-stand-454382>

Timed to the day when Congress will formally certify President-elect Joe Biden’s win, the MAGA crowd is trying to pressure Vice President Mike Pence and Republican lawmakers to refuse to seat Biden over fabricated voter-fraud claims. It’s a doomed plan, given the makeup of Congress, the absent evidence behind the rigged election allegations and the fact that every important state has already certified Biden’s win. Yet that hasn’t stopped a swell of Trump supporters from making plans — and the president from teasing his own appearance.

According to disinformation and extremist researchers, the Jan. 6 gathering will look similar to November’s Million MAGA March — a mashup of garden-variety Trump supporters and more extreme members of the far right, with no apparent central organizing apparatus. Stop the Steal, a group affiliated with pro-Trump super PACs and allies of Trump adviser Roger Stone, has filed for permits and plans to protest outside the Capitol, but other groups have also claimed to be the true official planners.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“After Trump’s drubbing in the courts, liberals fear a legal hangover”<https://electionlawblog.org/?p=120187>
Posted on January 4, 2021 8:24 am<https://electionlawblog.org/?p=120187> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Gerstein for Politico:<https://www.politico.com/news/2021/01/01/donald-trump-courts-election-legal-hangover-453217>

While many of the Trump suits died swiftly due to a profound lack of evidence or obvious flaws in the lawyers’ factual claims, judges used a broad array of legal grounds to nail the coffin firmly shut. Although the facts may be different in future cases, the procedural tools and theories used to scuttle the Trump cases are sure to be deployed against Democrats and civil rights groups in the coming months and years.

“There is some risk that some of these decisions that have come in post-election litigation could be bad for progressive plaintiffs going forward if you have courts choose to extend some of these doctrines towards pre-election challenges,” said Jon Greenbaum, chief counsel at the Lawyers Committee for Civil Rights Under Law. “There is some danger in that.”

Judges tossed out nearly all of the roughly 60 suits filed by the Trump campaign and its backers for a variety of reasons and, in many instances, individual cases were dismissed on many different grounds. Some judges said the Trump campaign lacked legal standing to challenge voting procedures. Others said Trump electors or individual voters lacked standing.

Many cases were thrown out for laches — a legal principle barring untimely suits. Others were declared to be moot or precluded by ongoing litigation at the state level. At least two suits were deemed to violate the Eleventh Amendment — the constitutional provision limiting federal-court litigation against states and state officials.

“The Trump campaign and their allies weren’t working with the most skilled lawyers,” said Loyola Law School professor Justin Levitt. “They weren’t paying close attention because, all of a sudden, they found out to their surprise that the courthouse doors are quite narrow. They’re only open a crack.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“POLITICO Playbook: The backstory of Trump’s Georgia call”<https://electionlawblog.org/?p=120185>
Posted on January 4, 2021 6:51 am<https://electionlawblog.org/?p=120185> by Rick Hasen<https://electionlawblog.org/?author=3>

Marc Caputo:<https://www.politico.com/newsletters/playbook/2021/01/04/the-backstory-of-trumps-georgia-call-491268?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>

It started on Saturday when Trump and his team reached out to talk to Raffensperger, who, according to an adviser, felt he would be unethically pressured by the president. Raffensperger had been here before: In November he accused<https://www.washingtonpost.com/politics/brad-raffensperger-georgia-vote/2020/11/16/6b6cb2f4-283e-11eb-8fa2-06e7cbb145c0_story.html> Trump ally and South Carolina Sen. Lindsey Graham of improperly exhorting him to meddle in the election to help Trump win Georgia. Graham later denied it.<https://www.nbcnews.com/politics/2020-election/graham-denies-georgia-sec-state-charge-he-inquired-about-tossing-n1248005>

So why not record the call with the president, Raffensperger’s advisers thought, if nothing else for fact-checking purposes. “This is a man who has a history of reinventing history as it occurs,” one of them told Playbook. “So if he’s going to try to dispute anything on the call, it’s nice to have something like this, hard evidence, to dispute whatever he’s claiming about the secretary. Lindsey Graham asked us to throw out legally cast ballots. So yeah, after that call, we decided maybe we should do this.”

The call took place Saturday afternoon. “Mr. President,” announced Mark Meadows, the White House chief of staff, at the top of the call, “everyone is on the line.” Little did he know. Trump made his ask and did most of the talking for the next hour, trafficking in the same conspiracy theories about election fraud that no court or criminal investigator has found credible. At the end of the call, Trump complains, “What a schmuck I was.”

Raffensperger’s team kept quiet about the call and the recording and waited. The president made the next move, claiming on Sunday morning via Twitter that Raffensperger was “unwilling, or unable, to answer” questions about his baseless claims of widespread voter fraud. “Respectfully, President Trump: What you’re saying is not true,” Raffensperger replied<https://twitter.com/GaSecofState/status/1345753643593687040> at 10:27 a.m. “The truth will come out.” It wasn’t an empty promise.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Guide to Counting Electoral College Votes and The January 6, 2021 Meeting of Congress”<https://electionlawblog.org/?p=120183>
Posted on January 4, 2021 6:43 am<https://electionlawblog.org/?p=120183> by Rick Hasen<https://electionlawblog.org/?author=3>

This guide<https://voterprotectionprogram.org/wp-content/uploads/2021/01/VPP-Guide-to-Counting-Electoral-Votes.pdf> by Joshua Matz, Norman Eisen, and Harmann Singh could come in very handy.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“All Pence Can Do Is Count; The Constitution is clear. Neither the vice president nor Congress has the power to reject electoral votes.”<https://electionlawblog.org/?p=120181>
Posted on January 4, 2021 6:39 am<https://electionlawblog.org/?p=120181> by Rick Hasen<https://electionlawblog.org/?author=3>

Alan Charles Raul and Richard Bernstein WSJ oped.<https://www.wsj.com/articles/all-pence-can-do-is-count-11609710373?mod=opinion_lead_pos6>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

--
Rick Hasen
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UC Irvine School of Law
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