[EL] ELB News and Commentary 1/7/21

[Rick Hasen]

With Biden’s Win Now Officially Recognized by Congress, Trump Needs to Be Immediately Removed from Office for the Remainder of His Term; The Next 13 Days are Dangerous Times<https://electionlawblog.org/?p=120303>
Posted on January 7, 2021 9:03 am<https://electionlawblog.org/?p=120303> by Rick Hasen<https://electionlawblog.org/?author=3>

I made this case in my statement<https://electionlawblog.org/?p=120280> yesterday but now that the vote counting is complete in Congress, this becomes Job 1:

Restoring order and finishing the constitutionally mandated counting of the ballots is step number one. Step number 2 is dealing with President Trump’s remaining two weeks in office. For years I have been writing about how dangerous he has been for American democracy, and indeed a big thrust of my most recent book (Election Meltdown) and my book in progress (Cheap Speech) is the dangers of Trump and Trumpism to American democracy. A democracy depends upon conducting fair elections and the losers (perhaps grudgingly) accepting those results as legitimate and agreeing to fight another day.

Trump has never accepted this democratic value and never agreed to a peaceful transition of power. He has put forward completely debunked conspiracy theories saying that the election was stolen, that the results rigged. Whether he believes it or not, he has convinced millions of his followers to believe it. He told his followers for days to come to DC for today’s counting for a “wild” protest. He encouraged today’s march on the capitol. He’s only belatedly told protesters to “go home,” while still spewing conspiracy theories.

This attempt to overturn the results by force followed his attempts to strong arm Republican election officials and legislators to overturn the results of the election in numerous states. They have admirably resisted despite relentless pressure. His most recent call, last Saturday, with Georgia’ secretary of state, is a likely crime under both federal and Georgia law. He continues to foment violent resistance based upon lies with his most ardent supporters.

Trump’s term ends on January 20 unless he is removed from office earlier. It can happen either through invocation of the 25th amendment, done by VP Pence and a majority of the cabinet, on grounds that Trump has shown his unable or unwilling to fulfill his duties as President, or through impeachment and removal from office.

It is not just liberals making this call. Business leaders and some Republicans and leading conservatives have said that today has crossed the line. Trump needs to be removed from office and it needs to happen immediately. If impeached, he should be disqualified from ever holding office again. (He can even be impeached and disqualified after leaving office.)

Removal is very unlikely to happen given the hold that Trump continues to hold over the Republican Party base, but there’s no question that it should.

Congress should not have recessed last night. Speaker Pelosi should call the House back into session and do a summary impeachment based on yesterday’s events. Then the Senate can remove should things deteriorate further.

(I’ll have more to say on those Republicans in Congress voting to sustain faux objections and undermining democracy at a later time.)
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


During Yesterday’s Capitol Insurrection, Apparent Bombs Left at RNC and DNC<https://electionlawblog.org/?p=120301>
Posted on January 7, 2021 8:58 am<https://electionlawblog.org/?p=120301> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://www.nytimes.com/2021/01/06/us/politics/pipe-bomb-rnc.html> should not be lost in the shuffle:

An explosive device was found at the headquarters of the Republican National Committee in Washington and the nearby headquarters of the Democratic National Committee was evacuated after the discovery of a suspicious package on Wednesday, according to three people briefed on the discoveries.

The device that was found at the R.N.C. was a pipe bomb that was successfully destroyed by a bomb squad, according to an official for the R.N.C.

The package at the D.N.C. has yet to be identified, according to a top Democrat briefed on the matter who was not authorized to speak publicly about it….

FOX<https://twitter.com/JakeBGibson/status/1347189169613844482> reports they were actual explosive devices, “not phonies.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Second Circuit in Important Voting Rights Act Case Upholds East Ramapo Liability Under Section 2<https://electionlawblog.org/?p=120298>
Posted on January 7, 2021 8:50 am<https://electionlawblog.org/?p=120298> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://www.ca2.uscourts.gov/decisions/isysquery/ece08911-76c4-41ed-b679-0e7fd3d50488/2/doc/20-1668_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/ece08911-76c4-41ed-b679-0e7fd3d50488/2/hilite/> looks to be important:

Defendant-Appellant East Ramapo Central School District (“District”) appeals from the May 25, 2020 decision and order of the United States District Court for the Southern District of New York (Seibel, J.), issued after a bench trial, holding that the at-large election system used by the District to elect members to its Board of Education (“Board”) resulted in dilution of black and Latino residents’ votes in violation of Section 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301. On appeal, the District argues that: Section 2 requires a finding that racial motivations caused election results; the district court abused its discretion in admitting and relying on Plaintiffs’ expert’s findings, which used data derived through Bayesian Improved Surname Geocoding (“BISG”) rather than the more traditional Citizen Voting Age Population (“CVAP”) data; and the totality of the circumstances does not support a finding of impermissible vote dilution.

We reject these arguments. We hold that Section 2 does not require racial causation, though the existence or absence of such causation is a relevant factor for consideration. We further hold that the district court did not err in concluding that the analysis using BISG is reliable and superior to analysis using CVAP. Lastly, we hold that the totality of the circumstances supports the finding of a Section 2 violation given the near-perfect correlation between race and school-type; the scant evidence supporting the District’s claim that policy preferences, not race, caused election results; the Board’s blatant neglect of minority needs; the lack of minority-preferred success in elections; the exclusive, white-dominated slating organization; and evidence suggesting the District acted in bad faith throughout the litigation.

(Via How Appealing<https://howappealing.abovethelaw.com/2021/01/07/#142139>).
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“Next Capitol stress test for democracy: What if the Senate won’t seat Georgia’s winners?”<https://electionlawblog.org/?p=120296>
Posted on January 7, 2021 8:36 am<https://electionlawblog.org/?p=120296> by Rick Hasen<https://electionlawblog.org/?author=3>

Kevin Johnson<https://thefulcrum.us/congress/raphael-warnock-jon-ossoff> for The Fulcrum.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Facebook Suspends Trump Until After Biden Inauguration So Trump Doesn’t Interfere with Peaceful Transition of Power<https://electionlawblog.org/?p=120294>
Posted on January 7, 2021 8:16 am<https://electionlawblog.org/?p=120294> by Rick Hasen<https://electionlawblog.org/?author=3>

Zuckerberg statement.<https://twitter.com/NYTnickc/status/1347210274345005057?s=20>
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, Election Meltdown<https://electionlawblog.org/?cat=127>


My Biggest Fear Post-Election: A Covid-Related Death or Incapacitation of Biden Between December 14 and January 6<https://electionlawblog.org/?p=120292>
Posted on January 7, 2021 8:07 am<https://electionlawblog.org/?p=120292> by Rick Hasen<https://electionlawblog.org/?author=3>

I did a lot of handholding on social media for all the people who were worried the courts or state legislatures were going to overturn the results of the election. I explained how unlikely those scenarios were and why.

But this one really worried me, and I didn’t want to emphasize it because there was really nothing to do about except hope for Biden’s good health: there are no good rules for what would have happened if Biden died after electors voted in their states on December 14 and Congress counted those votes on January 6.

See this Oct. 1 post of mine,<https://electionlawblog.org/?p=116098> when it was announced that Trump had contracted Covid, quoting Rick Pildes:

The President and First Lady reportedly tested positive<https://www.nytimes.com/2020/10/02/us/politics/trump-positive-coronavirus.html?action=click&module=Top%20Stories&pgtype=Homepage> for the coronavirus. As the New York Times notes, “Mr. Trump’s positive test result could pose immediate difficulties for the future of his campaign against former Vice President Joseph R. Biden Jr., his Democratic challenger, with just 33 days before the election on Nov. 3. Even if Mr. Trump, 74, remains asymptomatic, he will have to withdraw from the campaign trail and stay isolated in the White House for an unknown period of time. If he becomes sick, it could raise questions about whether he should remain on the ballot at all.”

And of course with the President having just attended the debate earlier this week with Joe Biden, there could be concerns about Biden’s health as well.

I wish everyone who has contracted this terrible disease a full and speedy recovery.

But as a matter of national importance we need to ask what would happen if one of the presidential candidates died or became incapacitated before election day. Rick Pildes and Joshua Tucker did a two part series<https://www.washingtonpost.com/politics/2020/05/16/what-else-happens-if-us-presidential-candidate-withdraws-or-dies-before-election-is-over-part-2/> on the different permutations<https://www.washingtonpost.com/politics/2020/05/16/what-else-happens-if-us-presidential-candidate-withdraws-or-dies-before-election-is-over-part-2/> of what could happen, but this seems to fall within the cracks. …

[Pildes:] But I can conjure up more complex scenarios. Remember, Congress ultimately “counts” the electors’ votes. Say Candidate A wins in State X, and then dies — but State X’s legislature strongly opposes Candidate A’s vice-presidential choice. One could imagine that state legislature appointing a new slate of electors committed to voting for a different candidate for president. It is unclear if states can constitutionally do this. We also don’t know if courts would get involved to decide that issue. Moreover, since Congress ultimately decides which electors’ votes to count, Congress might become a central player and decide what counts as a valid electoral vote in the various circumstances this scenario might unleash.

Add this to the list of things<https://www.theatlantic.com/ideas/archive/2021/01/we-cant-let-our-elections-be-vulnerable-again/617542/> we need to fix before the next election.
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Posted in electoral college<https://electionlawblog.org/?cat=44>


“Judge seems skeptical of Brindisi effort to revive ‘purged’ votes in NY22nd fight”<https://electionlawblog.org/?p=120290>
Posted on January 7, 2021 7:51 am<https://electionlawblog.org/?p=120290> by Rick Hasen<https://electionlawblog.org/?author=3>

The latest.<https://www.syracuse.com/politics/cny/2021/01/judge-seems-skeptical-of-brindisi-effort-to-revive-purged-votes-in-ny22nd-fight.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


California Redistricting Commission Seeks Counsels<https://electionlawblog.org/?p=120287>
Posted on January 7, 2021 7:44 am<https://electionlawblog.org/?p=120287> by Rick Hasen<https://electionlawblog.org/?author=3>

The 2020 California Citizens Redistricting Commission is seeking to retain Voting Rights Act Counsel and also Litigation Counsel. The two Requests for Information are at https://wedrawthelines.ca.gov/job_opportunities/. Interested individuals or firms with relevant experience are encouraged to apply to one or both. The application deadline is January 29, 2021. For more information, contact Kary Marshall, Chief Counsel, kary.marshall AT crc.ca.gov<http://crc.ca.gov/>.
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Posted in citizen commissions<https://electionlawblog.org/?cat=7>, redistricting<https://electionlawblog.org/?cat=6>


“Diehard Trump Republicans on collision course with US business”<https://electionlawblog.org/?p=120285>
Posted on January 6, 2021 6:12 pm<https://electionlawblog.org/?p=120285> by Rick Hasen<https://electionlawblog.org/?author=3>

FT:<https://www.ft.com/content/9fe61a5e-b57a-4a99-8985-ad7867a500b0>

Republicans supporting Donald Trump’s efforts to overturn the election are on a collision course with US business leaders, as companies reconsider support and funding for politicians they deem to be a threat to national stability.

The decision by 13 Republican senators to join most House Republicans in refusing to certify Joe Biden’s victory on Wednesday was quickly denounced by business groups, whose leaders voiced alarm at the threat it posed to a democracy that most had taken for granted.

Their action “undermines our democracy and the rule of law”, warned the US Chamber of Commerce, as a small business coalition blasted the “shameful complicity” of elected officials trying to help Mr Trump “undermine the will of the voters”.

Attempts to thwart the orderly transfer of power to Mr Biden ran “counter to the essential tenets of our democracy”, added more than 180 New York executives including Accenture’s Julie Sweet, BlackRock’s Larry Fink and KKR’s Henry Kravis.

Pointedly, several of the statements argued that indulging baseless conspiracy theories — including that Mr Biden only won thanks to mass voter fraud — was bad for business at a time when executives want Washington to tackle the economic fallout from Covid-19.

Sowing further distrust in the political system “threatens the economic recovery . . . our country desperately needs”, said the Business Roundtable, which is led by Doug McMillon, Walmart chief executive.

Richard Edelman, head of the eponymous public relations group, said: “CEOs are scared. They don’t like the idea America is a banana republic.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


No Words<https://electionlawblog.org/?p=120283>
Posted on January 6, 2021 2:59 pm<https://electionlawblog.org/?p=120283> by Rick Hasen<https://electionlawblog.org/?author=3>

Sherrilyn Ifill:<https://twitter.com/Sifill_LDF/status/1346954181488369666?s=20>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


My Statement: When Order is Restored at the Capitol, Congress Needs to Quickly Count the Electoral College Votes Confirming Biden Victory and Trump Needs to Be Immediately Removed from Office<https://electionlawblog.org/?p=120280>
Posted on January 6, 2021 2:20 pm<https://electionlawblog.org/?p=120280> by Rick Hasen<https://electionlawblog.org/?author=3>

Today has been a very sad day for American democracy. Just as Congress was beginning the formality of the process of counting state electoral college votes—as a disingenuous objection for counting Arizona’s electoral college votes from Rep. Gosar and Sen. Cruz was being debated separately in the House and Senate–an armed angry mob of Trump protesters, encouraged by President Trump, stormed the Capitol. The images were profoundly disturbing of Trumpist and QAnon protesters marching freely within the Capitol, with one in Speaker Pelosi’s office and another in the front of the Senate chamber. There has been violence, with reports of at least one person shot. Law enforcement has been slow to respond, and eventually we will find out why But order is slowly being restored.

Within hours, I expect that law enforcement officers will regain control of the Capitol complex. Tonight or perhaps early tomorrow the Senate and House will resume their deliberations. If Senators like Ted Cruz and Josh Hawley were more responsible given today’s horrific events, they will withdraw their objections and no other Senators will raise objections. This would end the debates (because it takes a Senator and a Representative to join in an objection) and the formality of counting can be done expeditiously, formally declaring Joe Biden the winner of the election. If the objections continue, it will take more hours to get through the counting, but the counting will happen.

(Even if protesters managed by delay things further, which they will not be able to do, Trump is out of office automatically by virtue of the 20th amendment on January 20 at noon, leaving Nancy Pelosi as Acting President. It won’t come to that.)

Restoring order and finishing the constitutionally mandated counting of the ballots is step number one. Step number 2 is dealing with President Trump’s remaining two weeks in office. For years I have been writing about how dangerous he has been for American democracy, and indeed a big thrust of my most recent book (Election Meltdown) and my book in progress (Cheap Speech) is the dangers of Trump and Trumpism to American democracy. A democracy depends upon conducting fair elections and the losers (perhaps grudgingly) accepting those results as legitimate and agreeing to fight another day.

Trump has never accepted this democratic value and never agreed to a peaceful transition of power. He has put forward completely debunked conspiracy theories saying that the election was stolen, that the results rigged. Whether he believes it or not, he has convinced millions of his followers to believe it. He told his followers for days to come to DC for today’s counting for a “wild” protest. He encouraged today’s march on the capitol. He’s only belatedly told protesters to “go home,” while still spewing conspiracy theories.

This attempt to overturn the results by force followed his attempts to strong arm Republican election officials and legislators to overturn the results of the election in numerous states. They have admirably resisted despite relentless pressure. His most recent call, last Saturday, with Georgia’ secretary of state, is a likely crime under both federal and Georgia law. He continues to foment violent resistance based upon lies with his most ardent supporters.

Trump’s term ends on January 20 unless he is removed from office earlier. It can happen either through invocation of the 25th amendment, done by VP Pence and a majority of the cabinet, on grounds that Trump has shown his unable or unwilling to fulfill his duties as President, or through impeachment and removal from office.

It is not just liberals making this call. Business leaders and some Republicans and leading conservatives have said that today has crossed the line. Trump needs to be removed from office and it needs to happen immediately. If impeached, he should be disqualified from ever holding office again. (He can even be impeached and disqualified after leaving office.)

Removal is very unlikely to happen given the hold that Trump continues to hold over the Republican Party base, but there’s no question that it should.

It will take years to undo the damage to American democracy coming from what we have seen during this presidency culminating in today’s dangerous actions. That is Step 3 and we will have to think hard about how to make it happen.

American democracy remains in peril. We need all hands on deck to restore it.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Key Court Cases on Counting Electoral College Votes<https://electionlawblog.org/?p=120278>
Posted on January 6, 2021 11:09 am<https://electionlawblog.org/?p=120278> by Rick Hasen<https://electionlawblog.org/?author=3>

In connection with the objections and arguments being made today in the congressional joint session surrounding the counting of the votes of the presidential electors, Election Law at Ohio State has summarized the key court cases that have previously considered similar claims. This summary can be found on the Ohio State website, here.<https://electioncases.osu.edu/2021/01/summary-of-post-election-cases/>

The purpose of this summary is not to be comprehensive, but to capture the most relevant judicial proceedings. Since the November 3, 2020 presidential election, approximately sixty distinct cases concerning the conduct of that election have been adjudicated. Some of these cases were dismissed for procedural defects, but a number of them resulted in judicial opinions evaluating the merits of the claims. The Ohio State summary<https://electioncases.osu.edu/2021/01/summary-of-post-election-cases/> contains brief excerpts of these key decisions that did address the underlying claims, in an effort to collect in one place a helpful digest of how the federal and state courts of this country have addressed these issues, some of which are being discussed in Congress again today. The summary also includes links to the case pages of each of these key judicial cases in the Ohio State election law database, where the full opinions (as well as the entire dockets) of each of these cases can be found.
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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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