[EL] ELB News and Commentary 1/6/21
Rick Hasen
rhasen at law.uci.edu
Tue Jan 5 21:18:46 PST 2021
“McConnell’s plan to save the Senate”<https://electionlawblog.org/?p=120252>
Posted on January 5, 2021 8:46 pm<https://electionlawblog.org/?p=120252> by Rick Hasen<https://electionlawblog.org/?author=3>
Axios:<https://www.axios.com/mitch-mcconnell-senate-electoral-college-69717075-0061-432b-b95b-8ce5db1fe164.html>
What we’re hearing: During a Joint Session with the House, lawmakers plan to object first to Arizona’s results, which come up early in the alphabetical roll call of states. McConnell is expected to be the first senator to speak after he and his colleagues return to their chamber.
McConnell will draw on the same principles he laid out during a call with the Republican conference<https://www.axios.com/mcconnell-calls-jan-6-certification-his-most-consequential-vote-323cd74c-7dfa-4420-bd32-32a36398dadc.html> last week. He said Wednesday’s vote certifying Joe Biden’s victory would be “the most consequential I have ever cast.”
Ned Foley<https://twitter.com/Nedfoley/status/1346676750756028416?s=20>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Pence Said to Have Told Trump He Lacks Power to Change Election Result”<https://electionlawblog.org/?p=120250>
Posted on January 5, 2021 8:04 pm<https://electionlawblog.org/?p=120250> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2021/01/05/us/politics/pence-trump-election-results.html>
Vice President Mike Pence told President Trump on Tuesday that he did not believe he had the power to block congressional certification of Joseph R. Biden Jr.’s victory in the presidential election despite Mr. Trump’s baseless insistence that he did, people briefed on the conversation said.
Mr. Pence’s message, delivered during his weekly lunch with the president, came hours after Mr. Trump further turned up the public pressure on the vice president to do his bidding when Congress convenes Wednesday in a joint session<https://www.nytimes.com/2021/01/05/us/politics/republicans-congress-election-certification.html> to ratify Mr. Biden’s Electoral College win.
“The Vice President has the power to reject fraudulently chosen electors,” Mr. Trump wrote on Twitter<https://twitter.com/realDonaldTrump/status/1346488314157797389?s=20> on Tuesday morning, an inaccurate assertion that mischaracterized Mr. Pence’s largely formal and constitutionally prescribed role of presiding over the House and Senate as they receive and certify the electoral votes conveyed by the states and announcing the outcome.
Mr. Pence does not have the unilateral power to alter the results<https://www.nytimes.com/2021/01/05/us/politics/pence-trump-election.html> sent by the states to Congress.
More Republican senators came out on Tuesday against attempts to undermine the results, including Tim Scott of South Carolina and James M. Inhofe of Oklahoma, who said he viewed challenging any state’s certification as “a violation of my oath of office.”…
Mr. Pence has spent the past several days in a delicate dance, seeking at once to convey to the president that he does not have the authority to overturn the results of the election, while also placating the president to avoid a rift that could torpedo any hopes Mr. Pence has of running in 2024 as Mr. Trump’s loyal heir.
Even as he sought to make clear that he does not have the power Mr. Trump seems to think he has, Mr. Pence also indicated to the president that he would keep studying the issue up until the final hours before the joint session of Congress begins at 1 p.m. Wednesday, according to the people briefed on their conversation.
One option being considered, according to a person close to Mr. Trump, was having Mr. Pence acknowledge the president’s claims about election fraud in some form during one or more of the Senate debates about the results from particular states before the certification. Mr. Pence will preside over those debates.
In a statement issued late Tuesday night and inaccurately dated Jan. 5, 2020, Mr. Trump insisted the reporting about his discussion with Mr. Pence was “fake news.”
“He never said that,” the statement went on. “The Vice President and I are in total agreement that the Vice President has the power to act.”
Mr. Trump has been cajoling Mr. Pence in public and private to find a way to use his role on Wednesday to give credence to his unfounded claims — rejected by the states and in scores of court cases and backed by no evidence — that the election was stolen from him through widespread fraud.
The president has told several people privately that he would rather lose with people thinking it was stolen from him than that he simply lost, according to people familiar with his remarks.
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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>
Clarifying the Electoral Count Act Process<https://electionlawblog.org/?p=120247>
Posted on January 5, 2021 3:46 pm<https://electionlawblog.org/?p=120247> by Richard Pildes<https://electionlawblog.org/?author=7>
Statement from Richard Pildes, Edward Foley, Rick Hasen, Lisa Manheim, and Nate Persily:
Given the levels of anxiety about the process for counting electoral votes in Congress, we want to clarify certain fundamental legal facts about that process. This clarification is necessary because of possible misunderstandings of a recent New Yorker online essay<https://www.newyorker.com/news/our-columnists/trump-and-republicans-in-congress-could-still-jeopardize-the-election> about the process, written by Harvard Law School Professor Jeannie Suk Gerson.
During the election, and even more since then, we have seen one more fevered speculation after another about how the process might be manipulated to keep President Trump in office after Jan. 20th. Professor Suk is addressing one of these scenarios, though even among the various nightmare imaginings that have been conjured up, this is one of the most far-fetched.
Professor Suk asks what happens if the counting process takes more than five days to complete. She speculates that “some Republicans” might argue that Congress has to stop counting at that point, even if not all state electoral slates have been counted or rejected by then. They might further claim that, if no one had reached 270 electoral votes by that point, the election must then be thrown to the House to decide — because the election goes to the House if no one obtains an electoral college majority.
Since the House votes one state, one vote for this, and since a majority of delegations are Republican controlled, the House Republicans would then — in this scenario — vote in Trump as President. Thus, Republicans might drag the process of counting out, so that it lasts more than five days, and then find a way to anoint Trump as President for a second term.
But this is indeed merely a fevered speculation. Things simply cannot play out this way. The statute that governs this process is known as the Electoral Count Act. Under the Act, there is nothing magical that happens on day five, should the counting go on that long (which is not likely). The only thing that changes on day five is Congress can no longer go into recess. That’s designed to put pressure on Congress to complete the process.
But if Congress has not resolved whether to count or reject the vote from all the States and DC by day five, it simply continues the process of debating and resolving the issue for each state. Indeed, in the 1876-1877 disputed election, Congress did not finish the count until March 2 (two days before inauguration day, which at that time was March 4). Congress would continue to resolve any debates about every state, through Wyoming, until it completed the process.
Moreover, even if Congress were not to complete this process by Jan. 20th, the House would still not then decide who becomes President. By virtue of the Constitution and federal statutes, the Speaker of the House (after resigning that position) would then become Acting President, until a new President had been chosen. The only time the House has any role – which it has not played since 1824 – is if, after Congress has resolved matters from every state and the count has been completed, it still turns out that no one has a majority.
We doubt that any member of Congress would actually claim that the election is thrown to the House if Congress does not complete the count in five days (though who knows these days). But there would be no legal basis for that assertion, even were the count to take more than five days. The Republicans who plan to object to the count cannot make Trump President by dragging the process out, even for two weeks, and we are confident they know that.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
LLC That Gave $500,000 to Fund Effort to Recall CA Governor Newsom is Funded by a Single Donor Who Gives Large Amounts to Republican Party<https://electionlawblog.org/?p=120245>
Posted on January 5, 2021 2:53 pm<https://electionlawblog.org/?p=120245> by Rick Hasen<https://electionlawblog.org/?author=3>
Sac Bee:<https://www.sacbee.com/news/politics-government/capitol-alert/article248291980.html?utm_source=dlvr.it&utm_medium=twitter>
John Kruger is the man behind Prov 3:9 LLC, the elusive corporation that donated $500,000 to the campaign to recall Democratic Gov. Gavin Newsom, an officer for the company said Tuesday in a statement to KQED News.<https://twitter.com/guymarzorati/status/1346547090042675200?s=21>…
The news comes a day after Ann Ravel, a Democrat and formerly California’s chief elections watchdog, called on state ethics leaders to launch an investigation into the company for its donation.
Kruger’s donation represents the biggest contribution to the recall effort. Without significant funding, supporters won’t be able to collect the 1.6 million signatures needed to put a recall on the ballot. Late last year, a judge gave the recall campaign an extension to collect the signatures by March.
According to state records, Kruger, an investor, has donated hundreds of thousands of dollars to various state campaigns over the past several years. He is a registered Republican, and most recently, in October donated $100,000 to the California Republican Party<http://cal-access.sos.ca.gov/PDFGen/pdfgen.prg?filingid=2517932&amendid=0>, according to state records.
Federal filings show he has also donated thousands of dollars to Republican congressional candidates from Michigan, North Carolina, and Arizona. In 2019, he donated $2,800 to South Carolina Republican Sen. Lindsey Graham’s campaign.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Read Federal Court Order in Trump v. Kemp Denying Trump Attempt to Decertify Georgia Election Results and Order Georgia Legislature to Appoint Electors<https://electionlawblog.org/?p=120243>
Posted on January 5, 2021 2:33 pm<https://electionlawblog.org/?p=120243> by Rick Hasen<https://electionlawblog.org/?author=3>
28-page ruling.<https://electionlawblog.org/wp-content/uploads/trump-kemp-order.pdf>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
National Archives Did Not Send Along to Congress Fake Slates of Presidential Electors Submitted from Individuals in Five States<https://electionlawblog.org/?p=120239>
Posted on January 5, 2021 2:20 pm<https://electionlawblog.org/?p=120239> by Rick Hasen<https://electionlawblog.org/?author=3>
Frank Thorp:<https://twitter.com/frankthorp/status/1346561184150024194>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Need a Laugh?<https://electionlawblog.org/?p=120237>
Posted on January 5, 2021 2:18 pm<https://electionlawblog.org/?p=120237> by Rick Hasen<https://electionlawblog.org/?author=3>
Watch<https://www.youtube.com/watch?v=aCIDRLCROWE>:
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Posted in election law "humor"<https://electionlawblog.org/?cat=52>
“Trump Says Pence Can Overturn His Loss in Congress. That’s Not How It Works.”<https://electionlawblog.org/?p=120235>
Posted on January 5, 2021 1:46 pm<https://electionlawblog.org/?p=120235> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT reports.<https://www.nytimes.com/2021/01/05/us/politics/pence-trump-election.html?action=click&module=Spotlight&pgtype=Homepage>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“All Your Paranoid Questions About the Electoral College Certification, Answered”<https://electionlawblog.org/?p=120233>
Posted on January 5, 2021 1:40 pm<https://electionlawblog.org/?p=120233> by Rick Hasen<https://electionlawblog.org/?author=3>
Ben Jacobs explainer<https://gen.medium.com/all-your-paranoid-questions-about-the-electoral-college-certification-answered-7b636f6af314>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“GOP leaders in Pa. Senate will refuse to seat Democrat certified by state as winner”<https://electionlawblog.org/?p=120231>
Posted on January 5, 2021 1:37 pm<https://electionlawblog.org/?p=120231> by Rick Hasen<https://electionlawblog.org/?author=3>
Spotlight PA<https://www.inquirer.com/politics/election/spl/jim-brewster-pennsylvania-senate-gop-refuse-to-seat-nicole-ziccarelli-20210104.html>:
Setting the stage for a postelection showdown, Republicans who control the Pennsylvania Senate will refuse to seat a Democratic senator whose narrow win in November is being challenged in federal court, even as it has been certified by state officials.
Republican leaders confirmed Sen. Jim Brewster of Allegheny County will not be permitted to take the oath of office Tuesday when the legislature returns to launch a new two-year session.
The top Republican in the Senate, Jake Corman, said that he and his colleagues believe a decision in a legal challenge brought by Brewster’s GOP opponent is necessary before the chamber can act.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
My Appearance on The Last Word with Lawrence O’Donnell and Former U.S. Attorney Michael J. Moore Talking About Whether Trump Georgia Call Was a Crime<https://electionlawblog.org/?p=120229>
Posted on January 5, 2021 1:33 pm<https://electionlawblog.org/?p=120229> by Rick Hasen<https://electionlawblog.org/?author=3>
You can watch it here<https://www.msnbc.com/the-last-word/watch/fmr-u-s-attorney-trump-s-call-merits-investigation-by-fulton-co-district-attorney-98793029905?cid=sm_npd_ms_tw_lw>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Ted Cruz Will Object to Arizona Electors So He Can Get to Speak First When Senate Debates Objections Wednesday. Really Despicable Conduct from Someone Who Knows Better<https://electionlawblog.org/?p=120227>
Posted on January 5, 2021 1:21 pm<https://electionlawblog.org/?p=120227> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo. <https://www.washingtonpost.com/politics/congress-electoral-college-trump-republicans/2021/01/05/f5dfae36-4f72-11eb-83e3-322644d82356_story.html> Unlike Trump, Cruz knows better. He’s smart. This is just evil.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“Trump’s call is still a crime, even if he believes his own fraud fantasies”<https://electionlawblog.org/?p=120225>
Posted on January 5, 2021 12:59 pm<https://electionlawblog.org/?p=120225> by Rick Hasen<https://electionlawblog.org/?author=3>
Trevor Potter and Mark Gaber in WaPo<https://www.washingtonpost.com/outlook/2021/01/05/trump-call-raffensperger-crime/>:
Although a criminal conviction does require proof of intent — proof Trump knew he was asking for nonexistent votes to be counted in his favor — a person cannot avoid criminal liability by simply deciding to believe fantasy over fact. For example, if a person becomes convinced that she owns her neighbor’s car and is shown the title certificate proving otherwise, she cannot steal the car and escape conviction by feigning she truly believed fiction over fact — at least, not without mounting an insanity defense.
The proof required for a conviction here would be that Trump was made aware of the facts — that his voter fraud allegations in Georgia (and elsewhere) are false, and he nevertheless sought the announcement of false election results in his favor. Georgia has gone through two full recounts<https://www.ajc.com/politics/election/georgia-recount-confirms-biden-win-again-but-trump-still-battling/OZGAOQCMKVFG7G43L5PSF3BNHM/>, including a hand recount verifying machine ballots, plus an in-depth review of signature matching demanded by Republican officials. After all of this, Biden’s victory in Georgia was certified by the Republican governor elected with Trump’s help. Repeatedly on the call, the Republican secretary of state and his legal counsel systematically knocked down one conspiracy theory after the next, explaining the Georgia state police and other government investigators and multiple court proceedings had found them meritless. Yet despite being told these facts, the president then repeated, “So what are we going to do here, folks? I only need 11,000 votes … give me a break.”
Trump can’t escape criminal culpability now simply with a “head in the sand” defense. He can’t dodge an investigation by Georgia prosecutors or by the Justice Department by feigning ignorance. It is a criminal violation of federal law to attempt to deprive voters of a fair and impartial election by procuring fictitious ballots. It is a criminal violation of Georgia law to solicit another person to engage in election fraud. The president’s demands in the hour-long call<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_11> on Saturday seem to fit squarely within the conduct described by these laws.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“Judges Doing What Judges Do: A Unified Theory of the 2020 Election Season”<https://electionlawblog.org/?p=120223>
Posted on January 5, 2021 12:54 pm<https://electionlawblog.org/?p=120223> by Rick Hasen<https://electionlawblog.org/?author=3>
Fascinating Sam Issacharoff:<https://www.justsecurity.org/74062/judges-doing-what-judges-do-a-unified-theory-of-the-2020-election-season/>
Dozens of judges, from all political persuasions, uniformly rejected the extravagant claims of President Donald Trump to set aside the presidential election results, or to compel Republican state legislatures to deliver their electors to him. Even with the last case<https://cdn.donaldjtrump.com/public-files/press_assets/trump-v-boockvar-petition.pdf> dwindling in the Supreme Court, it is clear that the naked appeal to the partisan background of judges fell flat. Within the legal profession there is a sense of satisfaction that the judiciary as an institution held firm and that the rule of law was vindicated. But why? Surely there must be some reason other than the donning of robes that produced this result. Why did judges not play to the role that politics seemed to ordain?
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Ned Foley: “Why Pence can’t help save Trump”<https://electionlawblog.org/?p=120221>
Posted on January 5, 2021 12:50 pm<https://electionlawblog.org/?p=120221> by Rick Hasen<https://electionlawblog.org/?author=3>
New Ned <https://www.washingtonpost.com/opinions/2021/01/05/pence-cannot-intervene-trump-electoral-college-votes/> in WaPo:
President Trump seems to believe that Vice President Pence could overturn the election results when he presides over the congressional counting of electoral votes on Wednesday.
Trump is wrong, but any attempt by Pence to intervene on behalf of himself and Trump, if it comes to that, would be a constitutional travesty. It won’t work, but it would set a dangerous precedent….
How long this will take remains unclear — because we don’t know how many states Republicans will object to. But with two hours of debate permitted for each objection, plus the time it takes for moving between the joint session and separate debates and votes in each chamber, the whole process could stretch well into Thursday.
Could Pence introduce another monkey wrench, perhaps by presenting “rival” packages of electoral votes for some states? Any such rival slates of electors lack any official pedigree and should be discarded, as required by the law. But Pence — if he is inclined to do Trump’s bidding — might try to force Congress to debate the official and unofficial packages simultaneously. Either way, the two chambers control the outcome; it’s just a question of how to get there.
The remaining wild card would be for Pence to try to make the unconstitutional move of ordering electoral votes for Biden disqualified. The two chambers separately can vote to overrule him. If Pence then says that he is disregarding their action and asserting his supposed power as president of the Senate, the Senate can insist upon its right as a parliamentary body to control the conduct of its presiding officer.
As a last resort, Congress could suspend the counting of electoral votes until Pence relents and abides by its decision. In that extraordinary case, Pence’s term would still end at noon on Jan. 20. The counting would resume with the Senate’s president pro tempore in the chair. Messy, yes, but Biden still would become president.
In this way, Congress can withstand whatever Trump and his allies — including, potentially, Pence — might do in a last-ditch effort to subvert the election.
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Posted in electoral college<https://electionlawblog.org/?cat=44>
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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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