[EL] ELB News and Commentary 1/13/21

Wed Jan 13 07:21:39 PST 2021

“‘Clear and present danger to the republic’: House readies bipartisan impeachment of Trump”<https://electionlawblog.org/?p=120452>
Posted on January 13, 2021 7:19 am<https://electionlawblog.org/?p=120452> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/01/13/house-impeachment-trump-458589>

The House convened Wednesday to impeach President Donald Trump for inciting a violent insurrection that — just one week earlier — stormed the U.S. Capitol, battered police officers and sent lawmakers fleeing for safety.

The charge, “willful incitement of insurrection,” is the gravest ever lodged against a sitting president.

The vote, expected in the afternoon, will be delivered in the same chamber where on Jan. 6 officers drew their guns to protect sheltering lawmakers from insurrectionists pounding at the doors. Five people were killed, including a U.S. Capitol police officer who died of injuries sustained during the riots.

“We think the president of the United States constitutes a clear and present danger to the republic,” said Rep. Jamie Raskin (D-Md.), who Speaker Nancy Pelosi appointed Tuesday as the House’s lead impeachment manager to argue for Trump’s conviction in an ensuing Senate trial.

And the vote will be bipartisan. As many as a dozen Republicans are expected to join Democrats in voting to impeach Trump, including the third-ranking GOP member, Rep. Liz Cheney (R-Wyo.), who described Trump as singularly responsible for assembling the mob that attacked the Capitol. Senate Majority Leader Mitch McConnell has privately indicated<https://www.politico.com/news/2021/01/12/democrats-trump-ouster-458216> that Trump’s actions qualify him for removal from office, according to a source familiar with his thinking.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“YouTube Suspends Trump’s Channel for at Least Seven Days”<https://electionlawblog.org/?p=120450>
Posted on January 13, 2021 7:16 am<https://electionlawblog.org/?p=120450> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/01/12/technology/youtube-suspends-trump.html>

YouTube said on Tuesday that it had suspended President Trump’s channel over concern about “ongoing potential for violence,” the latest move by one of the large technology companies to limit the president online.

In a post<https://twitter.com/YouTubeInsider/status/1349205688694812672?s=20> on YouTube’s official Twitter account, the Google-owned video site said it had suspended Mr. Trump’s account after one of his recent videos violated its policy for inciting violence.

That meant Mr. Trump would not be able to upload new content to his channel, which had about 2.8 million subscribers, for at least seven days. YouTube also said it was disabling all comments on his channel indefinitely….

During his presidency, Mr. Trump has used YouTube differently from Twitter or Facebook. His YouTube channel is filled mostly with clips from speeches and rallies, as well as videos of supporters defending him on Fox News. The videos lack the punch of his minute-by-minute commentary on Twitter and Facebook.

YouTube’s suspension comes after months of foot-dragging by the company. In the weeks after the Nov. 3 election, Mr. Trump’s channel was filled with videos showing him and his supporters challenging the outcome. YouTube refused to act on those videos even as critics called on it to do so, saying that questioning the election results was not a violation of its policies.

Last month, after most states certified their election results, YouTube said it would start removing videos that misleadingly said there had been widespread voting fraud or voting errors. But the company said that it would not penalize channels for posting such content with suspensions until Jan. 21, after Inauguration Day. YouTube said it had removed thousands of videos spreading misinformation about the 2020 election.

It removed several videos from Mr. Trump’s channel last week, including the one where he praised rioters and urged them to leave the Capitol. The company cited the spread of election misinformation.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>

“How Sheldon Adelson’s Death Could Affect the G.O.P.’s Future”<https://electionlawblog.org/?p=120448>
Posted on January 13, 2021 7:13 am<https://electionlawblog.org/?p=120448> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/01/12/us/politics/sheldon-adelson-republican-fundraising.html>

The death of Sheldon G. Adelson<https://www.nytimes.com/2021/01/12/business/sheldon-adelson-dead.html>, the casino magnate who used his vast fortune to tip the balance of power in Washington over the last decade by helping Republicans take control of the House, the Senate and eventually the White House, adds another element of uncertainty for the party as it faces a bitter reckoning over President Trump’s legacy.

Already, the fallout over the deadly siege on the Capitol by Trump supporters last week has hit the Republican Party financially, with several blue-chip corporations like Marriott and Blue Cross Blue Shield announcing that they would suspend<https://www.nytimes.com/2021/01/11/business/corporate-donations-politics.html> donations to members of Congress who supported Mr. Trump’s efforts to overturn President-elect Joseph R. Biden Jr.’s victory.

And while it seems likely that Mr. Adelson’s wife, Dr. Miriam Adelson, will continue with some of their family’s political giving, his passing Monday night at the age of 87 leaves Republicans without a benefactor whose donations were so crucial to the party’s success that only a small number of billionaires, like Charles Koch, rivaled his influence.

All told, Mr. Adelson and his wife have donated more than a half-billion dollars to G.O.P. campaigns and super PACs since 2010, according to federal records.

His absence could further complicate Republican efforts in 2022 to regain power in Congress, where they will be in the minority in both chambers once the results of the Georgia Senate runoff are formally certified later this month and Mr. Biden is inaugurated.

“The corporate giving backlash, along with the tragic passing of Sheldon Adelson, leaves a real void in the fund-raising plans for the 2022 cycle,” said Scott Reed, a veteran Republican strategist who has worked with the Adelsons and other major G.O.P. financiers.

Part of the concern for Republicans, Mr. Reed added, is that the Adelsons have been so singular a force in the party that there is no replacement. “A next generation of Sheldon-level giving does not readily exist,” he said.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“A ‘Stop the Steal’ organizer, now banned by Twitter, said three GOP lawmakers helped plan his D.C. rally”<https://electionlawblog.org/?p=120446>
Posted on January 13, 2021 7:11 am<https://electionlawblog.org/?p=120446> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/nation/2021/01/13/ali-alexander-capitol-biggs-gosar/>

Weeks before a mob of President Trump’s supporters stormed the U.S. Capitol, right-wing activist Ali Alexander told his followers he was planning something big for Jan. 6.

Alexander, who organized the “Stop the Steal” movement, said he hatched the plan — coinciding with Congress’s vote to certify the electoral college votes — alongside three GOP lawmakers: Reps. Andy Biggs (Ariz.), Mo Brooks (Ala.) and Paul A. Gosar (Ariz.), all hard-line Trump supporters.

“We four schemed up of putting maximum pressure on Congress while they were voting,” Alexander said in a since-deleted video<https://twitter.com/jason_paladino/status/1347647000922230784?s=20> on Periscope highlighted by the Project on Government Oversight, an investigative nonprofit. The plan, he said, was to “change the hearts and the minds of Republicans who were in that body, hearing our loud roar from outside.”

After riots inside the Capitol left five people dead — and Alexander and his group were banned from Twitter this week — those three GOP lawmakers are now under increasing scrutiny over their role in aiding the right-wing activist.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“First it was ‘fraud,’ then they just didn’t like the rules: How Pa. Republicans justified trying to overturn an election”<https://electionlawblog.org/?p=120444>
Posted on January 13, 2021 7:06 am<https://electionlawblog.org/?p=120444> by Rick Hasen<https://electionlawblog.org/?author=3>

Philly Inquirer<https://www.inquirer.com/politics/pennsylvania/pennsylvania-republicans-false-election-fraud-claims-20210113.html>:

Yet the congressmen and others from Pennsylvania nevertheless spent months supporting the claim that widespread fraud, procedural decisions, or irregularities undermined the integrity of the election, lending their authority to the argument that the very foundation of American democracy was being corrupted.

That belief among some Trump supporters<https://www.inquirer.com/politics/nation/trump-washington-capitol-attack-misinformation-20210112.html> fueled an insurrection at the Capitol<https://www.inquirer.com/politics/nation/us-capitol-attack-lockdown-electoral-colllege-certification-20210106.html> last week that left five dead and threatened the peaceful transfer of power, prompting a second impeachment vote<https://www.inquirer.com/politics/pennsylvania/trump-impeachment-capitol-attack-pa-nj-lawmakers-20210111.html> set for Wednesday.

Each claim fell by the wayside: The Trump campaign did not allege even a single instance of voter fraud in numerous Pennsylvania lawsuits, courts repeatedly rejected complaints about procedures, and the vote counting Perry and others cited was the result<https://www.inquirer.com/politics/election/2020-presidential-election-pa-voting-problems-20200628.html>, widely predicted before Election Day<https://www.inquirer.com/politics/election/pennsylvania-2020-presidential-election-results-absentee-ballots-20200117.html>, of mail ballots taking longer to count and being used more heavily by Democrats<https://www.inquirer.com/politics/election/pennsylvania-2020-election-blue-shift-20200127.html>.

There’s only evidence of one attempt to vote on behalf of a dead person: It was by a Trump supporter in Delaware County<https://www.inquirer.com/news/bruce-bartman-election-fraud-delaware-county-20201221.html>, and emerged well after Kelly and Reschenthaler made their claims.

So when eight Pennsylvania congressmen objected last week to accepting Pennsylvania’s votes for president, a move that would have disenfranchised every voter in the state, they narrowed their arguments — instead citing administrative procedures and saying they were only trying to ensure the integrity of Pennsylvania’s vote.

A week later — even as new videos and evidence emerge capturing the horror of the Capitol assault and the FBI warns of potential new attacks — none of the lawmakers have broken with Trump or voiced second thoughts about their votes.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Census Bureau Stops Work On Trump’s Request For Unauthorized Immigrant Count”<https://electionlawblog.org/?p=120442>
Posted on January 13, 2021 6:58 am<https://electionlawblog.org/?p=120442> by Rick Hasen<https://electionlawblog.org/?author=3>

Hansi Lo Wang for NPR<https://www.npr.org/2021/01/13/956352495/census-bureau-stops-work-on-trumps-request-for-unauthorized-immigrant-count>:

The U.S. Census Bureau has halted all work on President Trump’s directive to produce a state-by-state count of unauthorized immigrants that would have been used to alter a key set of census numbers, NPR has learned.

Senior career officials at the bureau instructed the internal team assigned to carry out Trump’s presidential memo to stand down and cease their work immediately on Tuesday night, according to a bureau employee who spoke to NPR on the condition of anonymity out of fear of retaliation in the workplace for speaking out.

The move by civil servants effectively ends the bureau’s participation in Trump’s bid to make an unprecedented change to who is counted in the 2020 census numbers that will be used to reallocate each state’s share of congressional seats and Electoral College votes for the next decade. According to the 14th Amendment<https://www.law.cornell.edu/constitution/amendmentxiv>, those counts must include the “whole number of persons in each state.”
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Posted in census litigation<https://electionlawblog.org/?cat=125>

Eric Foner: “Impeachment may not work. Here’s the next best way to dump Trump.”<https://electionlawblog.org/?p=120440>
Posted on January 13, 2021 6:52 am<https://electionlawblog.org/?p=120440> by Rick Hasen<https://electionlawblog.org/?author=3>

Historian Eric Foner in WaPo<https://www.washingtonpost.com/outlook/2021/01/12/14th-amendment-impeachment-alternative/>:

Once Reconstruction ended, Section Three fell into disuse. But it remains in the Constitution. Its language — “no person,” “any office” — makes no exception for the president. Applying the 14th Amendment to Trump via a new law or congressional resolution would require a majority vote in both houses, not two-thirds of the Senate as in the case of impeachment. That means it would rely on fewer GOP members who feel they need to stay on the good side of Trump’s base. It might even be more palatable to Republicans than impeachment, the most infamous and damning answer to a reckless president. Trump would undoubtedly try to veto such a measure, although whether he could legally do so has not been tested. But if Congress acted after the inauguration that threat would disappear. And it wouldn’t require the same rigmarole as an impeachment trial.

Like many parts of the Constitution, Section Three is not self-executing. In 1870, Congress passed a law directing local district attorneys to take steps to oust officeholders barred by Section Three and a number — it is unclear how many — did lose their positions. That law was repealed in 1948. Today, Congress should again specify a procedure for ascertaining to whom Section Three applies. Such a procedure would be a political process, not a full-fledged trial with witnesses and legal briefs, and so could happen quickly. It would have to include safeguards protecting free speech. One of the few times Section Three has been enforced since Reconstruction came in 1918, when the House of Representatives expelled the Wisconsin Socialist Victor Berger. His crime was a far cry from inciting a riot or aiding insurrection — he had been convicted under the Espionage Act because he opposed American participation in World War I. The Supreme Court later overturned his conviction and Berger went on to serve three more terms in the House.

Congress does not have to choose one path or the other. The House can vote to impeach as a statement of principle even though it is probable that a trial will be months away. At the same time, Congress can declare Trump and any other public officials and military veterans who incited or took part in the riot ineligible to hold future public office. They took an oath to defend the Constitution and, on Jan. 6, they violated it. This would be the mildest of punishments for inciting an uprising that left five people dead, threatened the lives of members of Congress, caused havoc in the Capitol, and sought to overturn the results of the presidential election. Such a step would be an affirmation of the vitality of our wounded democracy. Invoking a constitutional provision meant to limit the political power of Confederate leaders would mark an appropriate end to the career of a president who so closely identified himself with the memory of the Confederacy and with a culture of White resentment that reaches all the way back to the overthrow of Reconstruction.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Parler Users Breached Deep Inside U.S. Capitol Building, GPS Data Shows”<https://electionlawblog.org/?p=120438>
Posted on January 13, 2021 6:47 am<https://electionlawblog.org/?p=120438> by Rick Hasen<https://electionlawblog.org/?author=3>

Gizmodo<https://gizmodo.com/parler-users-breached-deep-inside-u-s-capitol-building-1846042905>:

At least several users of the far-right social network Parler appear to be among the horde of rioters that managed to penetrate deep inside the U.S. Capitol building and into areas normally restricted to the public, according to GPS metadata linked to videos posted to the platform the day of the insurrection in Washington.

The data, obtained<https://gizmodo.com/every-deleted-parler-post-many-with-users-location-dat-1846032466> by a computer hacker through legal means ahead of Parler’s shutdown on Monday, offers a bird’s eye view of its users swarming the Capitol grounds after receiving encouragement from President Trump — and during a violent breach that sent lawmakers and Capitol Hill visitors scrambling amid gunshots and calls for their death. GPS coordinates taken from 618 Parler videos analyzed by Gizmodo has already been sought after by FBI as part of a sweeping nationwide search for potential suspects, at least 20 of whom are already in custody.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump’s Census Director Is Trying To Rush Out Data On Noncitizens, Watchdog Says”<https://electionlawblog.org/?p=120436>
Posted on January 12, 2021 5:58 pm<https://electionlawblog.org/?p=120436> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR:<https://www.npr.org/2021/01/12/956199064/trumps-census-director-is-trying-to-rush-out-data-on-noncitizens-watchdog-says>

In the last days of the Trump administration, Census Bureau Director Steven Dillingham has pressured employees at the agency to speed up the production of a data report about noncitizens, including unauthorized immigrants, the bureau’s internal watchdog group says.

Dillingham, a Trump appointee<https://www.npr.org/2019/01/02/667063727/senate-confirms-trumps-census-bureau-director-nominee-steven-dillingham>, directed career civil servants to make the technical report “a number one priority” and considered offering a financial incentive to employees in order to finish by Friday, days before the end of Trump’s term, according to a memo released Tuesday by the inspector general’s office at the Commerce Department<https://www.oig.doc.gov/OIGPublications/OIG-21-019-M.pdf>, which oversees the bureau.

The watchdog group says multiple whistleblowers at the bureau expressed concern that the bureau has not had enough time to prepare a report and run quality checks on the data. They are worried that “incomplete data could be misinterpreted, misused, or otherwise tarnish the Bureau’s reputation.”

“One senior Bureau employee went as far to say that this work is statistically indefensible,” according to the memo, which notes that the Friday deadline “may no longer be in effect.”Article continues after sponsor message

The Census Bureau’s public information office did not immediately respond to NPR’s request for comment.

The revelation comes a day after the Trump administration disclosed to a federal judge<https://twitter.com/hansilowang/status/1348770139190255622> that the bureau is still “diligently” trying to fix irregularities in the 2020 census records that, along with the coronavirus pandemic, have postponed the once-a-decade process for using census results to reapportion congressional seats and Electoral College votes among the states.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>

House Judiciary Committee Staff Issues Report Supporting (Second) Impeachment of Donald Trump<https://electionlawblog.org/?p=120434>
Posted on January 12, 2021 4:55 pm<https://electionlawblog.org/?p=120434> by Rick Hasen<https://electionlawblog.org/?author=3>

Read it here.<https://judiciary.house.gov/uploadedfiles/house_judiciary_committee_report_-_materials_in_support_of_h._res._24.pdf>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“A Step Past Impeachment”<https://electionlawblog.org/?p=120432>
Posted on January 12, 2021 4:20 pm<https://electionlawblog.org/?p=120432> by Rick Hasen<https://electionlawblog.org/?author=3>

I was a guest on the Today, Explained podcast<https://open.spotify.com/episode/6YmD6fQz7Iny46bTQYas4k?si=esOapa3wQXWIbn2EUVk2BQ> by Vox talking about my recent Slate piece, The Only Way to Save American Democracy Now.<https://slate.com/news-and-politics/2021/01/biden-pelosi-schumer-john-lewis-save-democracy.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump’s pick for U.S. attorney in Georgia dismisses election fraud claims: ‘There’s just nothing to them’”<https://electionlawblog.org/?p=120430>
Posted on January 12, 2021 12:47 pm<https://electionlawblog.org/?p=120430> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/news/trumps-pick-for-us-attorney-in-georgia-dismisses-election-fraud-claims-theres-just-nothing-to-them/7JMIL37WANHWXCZD4FTJXH4CIQ/>

The acting U.S. attorney for Northern Georgia, who was named<https://www.ajc.com/news/breaking-acting-us-attorney-named-to-replace-exiting-pak/SBGYRKZPMZHIRCBSKVUHQXQY4E/> after his predecessor reportedly angered President Trump for not finding election fraud, told staffers in a conference call Monday that he dismissed two election fraud cases on his first day.

“I would love to stand out on the street corner and scream this, and I can’t,” said Bobby Christine, according to an audio recording of the call obtained by The Atlanta Journal-Constitution.

“But I can tell you I closed the two most — I don’t know, I guess you’d call them high profile or the two most pressing election issues this office has,” he said. “I said I believe, as many of the people around the table believed, there’s just nothing to them.”

Christine also said he found fewer election-related investigations in the office than he expected.

“Quite frankly, just watching television you would assume that you got election cases stacked from the floor to the ceiling,” said Christine. “I am so happy to find out that’s not the case, but I didn’t know coming in.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

PA: “Brewster win validated as federal judge denies GOP candidate’s challenge”<https://electionlawblog.org/?p=120428>
Posted on January 12, 2021 9:50 am<https://electionlawblog.org/?p=120428> by Rick Hasen<https://electionlawblog.org/?author=3>

Post-Gazette:<https://www.post-gazette.com/news/politics-local/2021/01/12/Brewster-Ziccarelli-senate-pennsylvania-ballots-challenge-gop-republican-democrat/stories/202101120109>

In a ruling issued Tuesday, a federal judge in Pittsburgh upheld the counting of a few hundred ballots in Pennsylvania’s 45th Senatorial District that had defects on their outer envelopes, again validating Democratic Sen. Jim Brewster’s victory and handing the GOP another post-election loss in the courts.

Mr. Brewster’s Republican opponent, Nicole Ziccarelli, had asked U.S. District Judge J. Nicholas Ranjan to void the ballots, arguing that Allegheny County’s tallying of them violated due process and equal protection provisions of the federal constitution because similar ballots weren’t counted in Westmoreland County.

The judge denied her complaint.

“Contrary to Ms. Ziccarelli’s reading, the Court finds that the Supreme Court expressly held that the undated ballots at issue remain valid ballots that are properly counted under state law,” Judge Ranjan wrote in his opinion. “Thus, because Ms. Ziccarelli’s federal constitutional claims all depend on the invalidity of the ballots under state law, those claims necessarily fail on the merits.”…

Senate Republican leaders refused to seat Mr. Brewster, of McKeesport, in the chamber last week<https://www.post-gazette.com/news/politics-state/2021/01/05/Pa-Senate-refuses-to-seat-McKeesport-s-Brewster-in-contentious-swearing-in-ceremony/stories/202101050125>, insisting that they wanted to let the federal case play out and give their members enough time to consider Ms. Ziccarelli’s official challenge to the race certification in their chamber.

“If the federal court rules, as we believe, that the ballots should not count then we will seat Mrs. Ziccarelli immediately and if they rule ballots should count we will seat Sen. Brewster immediately,” Mr. Corman said in a statement last week. “A subsequent appeal will not delay that seating, although it could result in further action in the future if the district court decision is not upheld.”

The interesting ruling<https://www.courtlistener.com/recap/gov.uscourts.pawd.273768/gov.uscourts.pawd.273768.72.0_1.pdf> from the court includes a very important discussion about Roe v. Alabama and due process concerns.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Building a Coalition for Impartial Election Administration”<https://electionlawblog.org/?p=120424>
Posted on January 12, 2021 8:38 am<https://electionlawblog.org/?p=120424> by Richard Pildes<https://electionlawblog.org/?author=7>

One important direction for improving our election system is taking election administration out of the hands of partisan actors and moving toward more professional election administration, as in many other democracies. I wanted to flag this event I’ll be participating in today with many of those leading this effort, including former election administrators. For more detailed analysis on suggested reforms, see the report at the bottom of the event’s description:

Election administrators performed heroically in the 2020 elections, but are under growing partisan pressure.  Key challenges emerged including legislative micromanagement, extensive litigation, insufficient funding, and widespread party-based distrust in the results and process. More broadly, U.S. elections need greater protection against partisan influence on election rule-making, redistricting, and election administration.

The goal of this invitation-only session is to establish core principles for reform and to begin building a coalition to achieve change.  The workshop will include current and former secretaries of state, election administration specialists, reform research and advocacy organizations, election scholars, and state legislators.

For more information email info at electionreformers.org<mailto:info at electionreformers.org>. For background on these issues click here<https://electionreformers.org/wp-content/uploads/2020/09/Guardrails_Guardians.pdf> for the recently released report, “Guardrails for the Guardians: Reducing Secretary of State Conflict of Interest and Building more Impartial U.S. Election Administration.”
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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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