Today’s Incident at Ohio State

Many of you by now have heard about the incident this morning on the Ohio State campus, involving an attacker who is now reportedly dead.  At least eight people have reportedly been hospitalized.  I’m fine — thanks to those of you who have asked — and as far as I know so is everyone at the law school.  I wasn’t far from the place of the attack, about to park my car, when I got the text alert and saw the sirens, then headed straight home.  The shelter-in-place order at the university has now been lifted, though classes have been cancelled for the rest of the day.  Like everyone else, I’m sure, my thoughts and prayers are with those who have been injured and their families.

Update:  I’ve edited the above post to delete references to a “shooter.”  Although the suspect was so described in an alert sent to the Ohio State community, subsequent reporting indicates that no gun was used.


“Trump falsely claims millions voted illegally; Without putting forth any evidence, the president-elect says he actually won the popular vote.”


Donald Trump tweeted without evidence on Sunday that millions of people voted illegally in November’s presidential election.

“In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally,” Trump wrote on Twitter.

There is no evidence to support Trump’s claim, which marks an unprecedented rebuke of the U.S. voting system for a president-elect.


Marc Elias: “Listening and Responding To Calls for an Audit and Recount”

The adult in the room:

Over the last few days, officials in the Clinton campaign have received hundreds of messages, emails, and calls urging us to do something, anything, to investigate claims that the election results were hacked and altered in a way to disadvantage Secretary Clinton. The concerns have arisen, in particular, with respect to Michigan, Wisconsin and Pennsylvania — three states that together proved decisive in this presidential election and where the combined margin of victory for Donald Trump was merely 107,000 votes.

It should go without saying that we take these concerns extremely seriously. We certainly understand the heartbreak felt by so many who worked so hard to elect Hillary Clinton, and it is a fundamental principle of our democracy to ensure that every vote is properly counted.

Moreover, this election cycle was unique in the degree of foreign interference witnessed throughout the campaign: the U.S. government concluded that Russian state actors were behind the hacks of the Democratic National Committee and the personal email accounts of Hillary for America campaign officials, and just yesterday, the Washington Post reported that the Russian government was behind much of the “fake news” propaganda that circulated online in the closing weeks of the election.

For all these reasons, we have quietly taken a number of steps in the last two weeks to rule in or out any possibility of outside interference in the vote tally in these critical battleground states.

First, since the day after the election we have had lawyers and data scientists and analysts combing over the results to spot anomalies that would suggest a hacked result. These have included analysts both from within the campaign and outside, with backgrounds in politics, technology and academia.

Second, we have had numerous meetings and calls with various outside experts to hear their concerns and to discuss and review their data and findings. As a part of this, we have also shared out data and findings with them. Most of those discussions have remained private, while at least one has unfortunately been the subject of leaks.

Third, we have attempted to systematically catalogue and investigate every theory that has been presented to us within our ability to do so.

Fourth, we have examined the laws and practices as they pertain to recounts, contests and audits.

Fifth, and most importantly, we have monitored and staffed the post-election canvasses — where voting machine tapes are compared to poll-books, provisional ballots are resolved, and all of the math is double checked from election night. During that process, we have seen Secretary Clinton’s vote total grow, so that, today, her national popular vote lead now exceeds more than 2 million votes.

In the coming days, we will continue to perform our due diligence and actively follow all further activities that are to occur prior to the certification of any election results. For instance, Wisconsin and Pennsylvania conduct post-election audits using a sampling of precincts. Michigan and many other states still do not. This is unfortunate; it is our strong belief that, in addition to an election canvass, every state should do this basic audit to ensure accuracy and public confidence in the election.

Beyond the post-election audit, Green Party candidate Jill Stein announced Friday that she will exercise her right as a candidate to pursue a recount in the state of Wisconsin. She has indicated plans to also seek recounts in Pennsylvania and Michigan.

Because we had not uncovered any actionable evidence of hacking or outside attempts to alter the voting technology, we had not planned to exercise this option ourselves, but now that a recount has been initiated in Wisconsin, we intend to participate in order to ensure the process proceeds in a manner that is fair to all sides. If Jill Stein follows through as she has promised and pursues recounts in Pennsylvania and Michigan, we will take the same approach in those states as well. We do so fully aware that the number of votes separating Donald Trump and Hillary Clinton in the closest of these states — Michigan — well exceeds the largest margin ever overcome in a recount. But regardless of the potential to change the outcome in any of the states, we feel it is important, on principle, to ensure our campaign is legally represented in any court proceedings and represented on the ground in order to monitor the recount process itself.

The campaign is grateful to all those who have expended time and effort to investigate various claims of abnormalities and irregularities. While that effort has not, in our view, resulted in evidence of manipulation of results, now that a recount is underway, we believe we have an obligation to the more than 64 million Americans who cast ballots for Hillary Clinton to participate in ongoing proceedings to ensure that an accurate vote count will be reported.


“U.S. Officials Defend Integrity of Vote, Despite Hacking Fears”


The Obama administration said on Friday that despite Russian attempts to undermine the presidential election, it has concluded that the results “accurately reflect the will of the American people.”

The statement came as liberal opponents of Donald J. Trump, some citing fears of vote hacking, are seeking recounts in three states — Wisconsin, Michigan and Pennsylvania — where his margin of victory was extremely thin.

A drive by Jill Stein, the Green Party candidate, for recounts in those states had brought in more than $5 million by midday on Friday, her campaign said, and had increased its goal to $7 million. She filed for a recount in Wisconsin on Friday, about an hour before the deadline.

In its statement, the administration said, “The Kremlin probably expected that publicity surrounding the disclosures that followed the Russian government-directed compromises of emails from U.S. persons and institutions, including from U.S. political organizations, would raise questions about the integrity of the election process that could have undermined the legitimacy of the president-elect.”


Stein Recount Could Endanger WI Electoral Votes in the “Safe Harbor”


Wisconsin could be at risk of missing a Dec. 13 deadline to certify its 10 electoral votes if clerks can’t complete an expected recount by then.

Hitting the deadline could be particularly tricky if Green Party presidential nominee Jill Stein is able to force the recount to be conducted by hand, Wisconsin’s top election official said.

Stein — who received just 1% of the vote in Wisconsin — has promised to file for a recount by Friday’s 5 p.m. deadline in Wisconsin. She is also planning to ask for recounts in Michigan and Pennsylvania, which have deadlines next week.

A federal “safe harbor” law requires states to complete presidential recounts within 35 days of the election to ensure their electoral votes are counted. This year, that’s Dec. 13.


NC Spent Nearly $5 Million So Far Defending Its Voting Law Found to be Intentionally Racially Discriminatory

News and Observer:

Since coming to power five years ago, North Carolina Republican lawmakers have spent more than $10.5 million defending controversial laws on everything from redistricting to voter ID to House Bill 2.

And the total will only grow as ongoing cases make their way through the appeals process.

Almost half the money – $4.9 million – went to defend the state’s sweeping voter law, which was overturned by a panel of federal judges.


Quote of the Day: Jill Stein Recount BS Edition

“If there were something to do here, there are a lot of us who would be jumping on it”

Adam Bonin, attorney representing democrats, to the Phil. Inquirer. (Bonin said that while every election has “little hitches and glitches, I haven’t seen anything which would cause me to question the results.” Nor, he said, “have I ever seen evidence that would lead me to call the machines into question. . . . You can’t just go on a fishing expedition. You have to have allegations of specific fraud, or machines that didn’t accept votes.”)

UPDATE: The Bonin quote originally appeared in this Chris Potter story in the Pittsburgh Post-Gazette.


“Russian propaganda effort helped spread ‘fake news’ during election, experts say”


The flood of “fake news” this election season got support from a sophisticated Russian propaganda campaign that created and spread misleading articles online with the goal of punishing Democrat Hillary Clinton, helping Republican Donald Trump and undermining faith in American democracy, say independent researchers who tracked the operation.

Russia’s increasingly sophisticated propaganda machinery — including thousands of botnets, teams of paid human “trolls,” and networks of websites and social-media accounts — echoed and amplified right-wing sites across the Internet as they portrayed Clinton as a criminal hiding potentially fatal health problems and preparing to hand control of the nation to a shadowy cabal of global financiers. The effort also sought to heighten the appearance of international tensions and promote fear of looming hostilities with nuclear-armed Russia.


Lessig Urges Faithless Electors Vote for Clinton, Pointing to Popular Vote in a Contest Not Based on Popular Vote

WaPo oped.

I find the argument troubling on two levels. First, the electors in the electoral college are not chosen to exercise judgment but to translate the will of the people in each state. If we had a system where we expected them to exercise independent judgment we would spend time vetting them.  Instead, they are generally loyal party members.

Second, relying on the national popular vote to overturn the results of the electoral college seems unfair even if, like me, you believe the electoral college is unfair. The election was run under the electoral college system. Would Clinton have won if both sides were going to run up the popular vote? Perhaps, but it is not a given.

This seems to go against rule of law ideas that we all abide by the rules for an election set in advance. Turning the electors into mighty platonic guardians doesn’t seem to be the right way to go.

So yes, I’d love to get rid of the Electoral College. But not ignore it in an election where everyone agreed it was the set of rules to use.



NC: “Republicans claim 43 voters are ineligible felons. Many of them aren’t”

News and Observer:

Larry Smith got an odd phone call last week: Someone had filed to throw out his vote, claiming he was a felon serving an active sentence.

Smith, who lives in Stokes County, is no felon. But he was one of 43 people named as a felons ineligible to vote in election complaints filed by Republicans with help from Gov. Pat McCrory’s campaign – part of an effort to claim the election results were marred by voter fraud.

The nonprofit Democracy North Carolina, which has urged McCrory to halt the protests, analyzed the names this week. The group found that 18 of them – nearly half – were wrongfully accused of being felons ineligible to vote. Four of them were confused with criminals who happen to have the same name, while others are on probation for misdemeanor convictions like drunk driving.

People convicted of misdemeanors do not lose their voting rights, and felons are ineligible to vote only while in prison, on probation or on parole.

“Hillary Clinton Supporters Call for Vote Recount in Battleground States”


Hillary Clinton’s lead in the popular vote is growing. She is roughly 30,000 votes behind Donald J. Trump in the key swing states of Michigan and Wisconsin — a combined gap that is narrowing. Her impassioned supporters are now urging her to challenge the results in those two states and Pennsylvania, grasping at the last straws to reverse Mr. Trump’s decisive majority in the Electoral College.

In recent days, they have seized on a report by a respected computer scientist and other experts suggesting that Michigan, Pennsylvania and Wisconsin, the keys to Mr. Trump’s Electoral College victory, need to manually review paper ballots to assure the election was not hacked.

“Were this year’s deviations from pre-election polls the results of a cyberattack?” J. Alex Halderman, a computer science professor at the University of Michigan who has studied the vulnerabilities of election systems at length, wrote on Medium on Wednesday as the calls based on his conclusions mounted. “Probably not.”

More likely, he wrote, pre-election polls were “systematically wrong.” But the only way to resolve the lingering questions would be to examine “paper ballots and voting equipment in critical states,” he wrote.

Tellingly, the pleas for recounts have gained no support from the Clinton campaign, which has concluded, along with outside experts, that it is highly unlikely the outcome would change even after an expensive and time-consuming review of ballots.


Great NYU Event in DC December 8: “A New American Political System?”

I’m really looking forward to participating in this Sidley Austin Forum looking at the 2016 Elections on December 8 in DC through NYU’s DC program.  Here is the tentative agenda (still waiting on announcement of the keynote):

10:00 a.m.

John J. Kuster, Partner, Sidley Austin LLP
Sally Katzen, Professor of Practice and Distinguished Scholar in Residence;
Co-Director of the Legislative and Regulatory Process Clinic, NYU School of Law
Bob Bauer, Professor of Practice and Distinguished Scholar in Residence;
Co-Director of the Legislative and Regulatory Process Clinic, NYU School of Law

10:10 a.m.  


10:55 a.m. 

PANEL I: The Role of Parties (and Third Parties)

Rick Boucher, Partner, Sidley Austin LLP; former Member of the United States House of Representatives (R-VA)

Benjamin Ginsburg, Partner, Jones Day; former General Counsel to the Republican National Committee (MSNBC Commentator)
David Keating, President, Center for Competitive Politics
Richard Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law

11:55 a.m.  

PANEL II: The State and Direction of Campaign Finance

Bob Bauer, Professor of Practice and Distinguished Scholar in Residence;
Co-Director of the Legislative and Regulatory Process Clinic, NYU School of Law

David Donnelly, President and CEO, Every Voice
Richard Hasen, Professor, University of California at Irvine
Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, NYU School of Law

 1:00 p.m.    


2:15 p.m.  

PANEL III: The Changing Role of the News and Social Media

Sally Katzen, Professor of Practice and Distinguished Scholar in Residence;
Co-Director of the Legislative and Regulatory Process Clinic, NYU School of Law

Ruth Marcus, Deputy Editorial Page Editor and Columnist, Washington Post
Jen Psaki, White House Communications Director

3:15 p.m.

PANEL IV: Effect of Developments in Technology on the Nature and Dissemination of Political Information and the Conduct of Campaigns

Cameron Kerry, Senior Counsel, Sidley Austin LLP; former General Counsel and Acting Secretary, United States Department of Commerce

Scott Goodstein, Founder and CEO, Revolution Messaging
Nathaniel Persily, James B. McClatchy Professor of Law, Stanford Law School
Joe Rospars, Founder and CEO, Blue State Digital

4:15 p.m.  

CLOSING PRESENTATION: A Perspective (on the Numbers) on the 2016 Presidential Election

Trevor Morrison, Dean and Eric M. and Laurie B. Roth Professor of Law, NYU School of Law
Frederick Yang, Partner, Garin Hart Yang Research Group

5:00 p.m.  


If you would like to RSVP to this event, please click here or copy and paste the link below:


GOP-Led FL Legislature Unanimously Rejects Republican David Rivera’s Election Contest

Miami Herald:

Former Congressman David Rivera lost his battle to return to the Florida House of Representatives Tuesday after state elections officials certified that he had lost to Democrat Robert Asencio by 53 votes and Asencio was sworn in to the District 118 seat.

The Florida Canvassing Board, headed by Secretary of State Ken Detzner, on Tuesday certified that the recount of ballots conducted last week by Miami Dade elections officials was legitimate and certified Asencio as the victor.

Rivera, a Republican who first served in the state Legislature from 2000-2008, had filed a formal challenge with the House, alleging that Asencio should not be seated because the state has not reviewed about 112 vote-by-mail ballots that were rejected because of mismatched signatures. He produced affidavits from 59 people who said they had voted by mail and wanted their ballots counted.

But during the House’s post-election organizational session on Tuesday, the House unanimously rejected Rivera’s claim, concluding he did not properly allege any irregularity with the vote tally. The review of affidavits from a selective set of voters would have been unprecedented in a race that did not involve fraud.

“There is no assertion and no evidence submitted that the Miami-Dade canvassing board did not fully follow applicable law and rules,’’ said Rep. Larry Metz, R-Umatilla, who moved to dismiss Rivera’s challenge. “..In other words, there was no allegation of any irregularity in canvassing or tabulating vote-by-mail or provisional ballots cast by the Miami-Dade canvassing board.”


Looks Like Someone Mangled Alex Halderman’s Views to Make Case for Recount to Help Clinton

Extensive Alex Halderman post at Medium begins:

You may have read at NYMag that I’ve been in discussions with the Clinton campaign about whether it might wish to seek recounts in critical states. Thatarticle, which includes somebody else’s description of my views, incorrectly describes the reasons manually checking ballots is an essential security safeguard (and includes some incorrect numbers, to boot). Let me set the record straight about what I and other leading election security experts have actually been saying to the campaign and everyone else who’s willing to listen….

Were this year’s deviations from pre-election polls the results of a cyberattack? Probably not. I believe the most likely explanation is that the polls were systematically wrong, rather than that the election was hacked. But I don’t believe that either one of these seemingly unlikely explanations is overwhelmingly more likely than the other. The only way to know whether a cyberattack changed the result is to closely examine the available physical evidence — paper ballots and voting equipment in critical states like Wisconsin, Michigan, and Pennsylvania. Unfortunately, nobody is ever going to examine that evidence unless candidates in those states act now, in the next several days, to petition for recounts.

This makes a lot more sense. As I wrote in my post last night, I have a lot of respect for Alex’s opinion .  And now we know the story in NY Mag had someone else’s fingerprints on it.


New Claims of Electronic Vote Rigging Used to Steal Election from Clinton: What to Think?

Quite a report from Gabriel Sherman:

Hillary Clinton is being urged by a group of prominent computer scientists and election lawyers to call for a recount in three swing states won by Donald Trump, New York has learned. The group, which includes voting-rights attorney John Bonifaz and J. Alex Halderman, the director of the University of Michigan Center for Computer Security and Society, believes they’ve found persuasive evidence that results in Wisconsin, Michigan, and Pennsylvania may have been manipulated or hacked. The group is so far not speaking on the record about their findings and is focused on lobbying the Clinton team in private.

Last Thursday, the activists held a conference call with Clinton campaign chairman John Podesta and campaign general counsel Marc Elias to make their case, according to a source briefed on the call. The academics presented findings showing that in Wisconsin, Clinton received 7 percent fewer votes in counties that relied on electronic-voting machines compared with counties that used optical scanners and paper ballots. Based on this statistical analysis, Clinton may have been denied as many as 30,000 votes; she lost Wisconsin by 27,000. While it’s important to note the group has not found proof of hacking or manipulation, they are arguing to the campaign that the suspicious pattern merits an independent review — especially in light of the fact that the Obama White House has accused the Russian government of hacking the Democratic National Committee.

Without public evidence on the record to examine it is hard to really evaluate this claim other than by looking at the credibility of the people involved. Halderman is very credible, and if he says there are anomalies that deserve investigation, they should be investigated. But the fact that this group has gone to Elias and Podesta, and so far the campaign has said nothing since learning of it last Thursday, should give you pause. Time  has just about run out. Claiming a hacked or rigged election is about as explosive a claim as one could make—-especially coming after Trump made unsupported allegations of vote rigging throughout the election. If there’s a realistic chance of anything here that could be proven to affect the election outcome, you have to trust Clinton’s legal team to advance it (or have advanced it already).

That said, let me make three more observations.

First, I continue to be inundated with messages from people advancing the most extreme legal and political theories to try to change the results of an election that many on the left see as a threat to American Democracy itself. People want to believe there is rigging, or some magic legal way out, to change the outcome of the election. All of these theories should be approached with extreme caution. Most are a combination of wishful thinking and dubious reasoning. That was true the theories that were put out there using exit polls to try to show that Ohio’s 2004 results were rigged against John Kerry. Some people still believe this even though there is no good evidence of it (as Rep. John Conyers concluded in his report).

Second, the top of Congress’s election reform agenda should be funding for a new generation of voting machines (something we desperately need), with a requirement to eliminate all electronic voting machines that do not produce a paper trail which can be fully audited to make sure that the electronic results match the paper results. In this era of mistrust and cyber-dirty tricks, this country cannot afford to keep using electronic voting machines without a paper trail.

Third, it is hard to overstate the damage Trump has done to American democracy by stoking vote rigging claims. Our democracy depends upon the losers accepting the results as part of a fair process. That concept, essential to our Republic, is under considerable stress right now.


“North Carolina’s Disputed Race for Governor: Historical Context”

Ned Foley:

Rick Hasen makes the correct and important observation that, if North Carolina’s General Assembly were to overturn the state’s gubernatorial election based not on the evidence of the actual valid votes, but solely because of a partisan desire to keep control of the governorship, then the federal judiciary would have the power to invalidate that “brazen power grab” as a violation of the Fourteenth Amendment.

In this post, I wish only to supplement Rick’s point with a historical perspective drawn from my new book, Ballot Battles: The History of Disputed Elections in the United States.

At the moment, no one knows for sure that the still-unsettled governor’s race in North Carolina will end up in the scenario that Rick envisions: a federal-court order, based on the precedent of Bush v. Gore or Roe v. Alabama, that nullifies the state legislature’s attempt to overturn the administratively certified result of the vote count. But if it does end up that way, it would underscore the 180-degree reversal of jurisprudence that has occurred over the course of the twentieth century concerning the power of the federal courts in this kind of case.


McCrory Calls for Recount in NCGov Race, NC Board of Elections Meeting Allows Counties to Continue Counting, But More Protests Coming

Press release from McCrory team, which is behind Cooper right now by about 6,000 votes.  (A candidate can request a recount if the number < 10,000. It will be very hard to make up a 6,000 vote deficit, and so the play might be something else. In normal times I would have expected a concession.)

On today’s NCBOE proceedings.


“Donald Trump’s Business Dealings Test a Constitutional Limit”

Adam Liptak for the NYT:

“Emolument” means compensation for labor or services. And the clause says that “no person holding any office of profit or trust” shall “accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state” unless Congress consents….

But he said that the answer would be different if a foreign government sought to make a payment to a sitting president. In a footnote, Mr. Barron added, “Corporations owned or controlled by a foreign government are presumptively foreign states under the Emoluments Clause.”

Mr. Trump’s companies do business with entities controlled by foreign governments and people with ties to them. The ventures include multimillion-dollar real estate arrangements — with Mr. Trump’s companies either as a full owner or a “branding” partner — in Ireland and Uruguay. The Bank of China is a tenant in Trump Tower and a lender for another building in Midtown Manhattan where Mr. Trump has a significant partnership interest.

Experts in legal ethics say those kinds of arrangements could easily run afoul of the Emoluments Clause if they continue after Mr. Trump takes office. “The founders very clearly intended that officers of the United States, including the president, not accept presents from foreign sovereigns,” said Norman Eisen, who was the chief White House ethics lawyer for Mr. Obama from 2009 to 2011.


“Judge to IRS: ‘Strong showing’ on Tea Party bias claim”

USA Today:

A federal judge ruled this month in a lawsuit in the ongoing IRS Tea Party saga that there was “a strong showing” that the agency had discriminated against conservative groups because of their political stances.

And U.S. District Court Judge Michael R. Barrett wrote in a decision that a group suing the IRS “has made a strong showing of a likelihood of success” on its claim that its free speech rights were violated by the delay in processing the application.


“Billionaires vs. the Press in the Era of Trump”

Emily Bazelon for NYT Magazine:

The new president will be a man who constantly accuses the media of getting things wrong but routinely misrepresents and twists facts himself. “Their single goal will be to burnish their reputation,” Tim O’Brien predicts of the Trump administration. There are signs, too, of new efforts to harness the law to the cause of cowing the press. Trump’s choice for chief adviser, Stephen Bannon, ran the alt-right Breitbart News Network before joining Trump’s campaign last summer. Breitbart announced last week that it was “preparing a multimillion-dollar lawsuit against a major media company” for calling Breitbart a “ ‘white nationalist’ website.” Even if Breitbart is bluffing, the threat will discourage other news outlets from using that term to describe it, and that will in turn help Breitbart and Bannon seem more acceptable to the mainstream. Trump was right about one thing: You don’t have to win every case to advance in the larger legal war.


“FEC hits Trump on 1,100 errors, totaling roughly $1.3M”


The Federal Election Commission is asking the campaign of Donald Trump to correct more than 1,000 errors in its latest financial filing.

The FEC determined that the Trump campaign accepted close to 1,100 donations, which amounted to roughly $1.3 million, that violated one of a handful of campaign finance laws….
Larry Noble of the Campaign Legal Center said the FEC letter is fairly routine.

“FEC Deadlocks on Charges Candidate Sought ‘Soft Money’”

Bloomberg BNA:

The Federal Election Commission dismissed on a deadlocked, party-line vote allegations that Jon Keyser, a Republican U.S. Senate candidate from Colorado illegally solicited $3 million in unlimited “soft money” contributions to aid his 2016 campaign.

Documents released by the FEC showed the allegations against Keyser, a former Colorado state legislator, focused on news reports that, while he was considering running for the U.S. Senate, he traveled to Washington, D.C. to meet potential supporters and attend a forum sponsored by the Republican Jewish Coalition….

The six FEC commissioners divided 3-3 in a vote on whether to pursue enforcement action. The FEC general counsel’s office recommended that the commissioners find “no reason to believe” that Keyser violated a campaign finance law that bars a federal candidate from soliciting soft money.
The FEC’s three Republican commissioners voted to follow staff recommendations in a report from the general counsel’s office on the enforcement complaint, designated Matter Under Review (MUR) 7008. The report relied on a response letter from Keyser’s attorney and an affidavit from the candidate acknowledging that he met with potential supporters before declaring his Senate candidacy but “did not solicit or accept any contributions during this time.”

“No, NC Republicans can’t just declare Pat McCrory a winner without courts having a say”

Peter St. Onge for Charlotte Observer:

So what’s the misinformation? The New York Times wrote Saturday, and Slate repeated Monday, that N.C. law not only allows the General Assembly to declare a winner in the governor’s race, but that the decision is “not reviewable” by the courts.

 Yes, N.C. lawmakers can declare a winner, a power given to them both by the N.C. constitution, which says the General Assembly can settle “contested” state races, but also the law cited by the New York Times and Slate that says losers in Council of State races can appeal the results to the legislature.

As for whether the legislature’s decision can be reviewed by courts, here’s what that N.C. statute actually says: “The decision of the General Assembly in determining the contest of the election pursuant to this section may not be reviewed by the General Court of Justice.”

While that might mean that N.C. courts can’t question such a decision, federal courts definitely can. So says Richard Hasen, election law expert and professor at the University of California-Irvine.

Hasen told me Monday night that if lawmakers declare McCrory the winner: “It could certainly be reviewable by a federal court regardless of what the legislature says.” He went into some detail a few moments later on his election law blog. It’s worth a read, but to summarize: If there’s clear evidence that Cooper got more votes, and there’s no plausible argument for fraud, then Cooper could claim both a Due Process and Equal Protection Clause violation if the race were handed to McCrory. There’s precedent for courts taking such a look.


“Supreme Court won’t investigate leaks”

Milwaukee Journal-Sentinel:

The Wisconsin Supreme Court declined Monday to appoint a special master to investigate leaks from a long-running John Doe probe to a newspaper, leaving it to Attorney General Brad Schimel to look into it on his own.

The Republican attorney general last month asked the state’s high court to appoint the special master to investigate the leak of more than 1,300 pages of sealed documents to the Guardian U.S. The documents came from a probe of Republican Gov. Scott Walker’s campaign that the state Supreme Court shut down in 2015.

The justices ruled 3-1 that it was for prosecutors — not the court — to decide whether to pursue a criminal investigation of the leaks.


If the NC Legislature Overturns NC Gov’s Election, Expect a Federal Lawsuit Despite State Law, One Which Could Well Succeed

Some have pointed to the fact that the North Carolina legislature’s decision in an election contest is “unreviewable” by the courts. Whether or not that is true in North Carolina state courts, the NC legislature through a statute cannot divest the federal courts of jurisdiction to consider U.S. constitutional claims.

If there is clear evidence both that Roy Cooper got more votes in North Carolina, with no plausible basis to claim that fraud infected the result (and by all indications so far, both of these facts are true), it could well be both a Due Process and Equal Protection Clause violation for the North Carolina legislature on a partisan basis to consider a “contest” and overturn the results and hand them to Pat McCrory. There are cases where federal courts have gotten involved in these kinds of ugly election disputes (think Roe v. AlabamaBush v. Gore). But a brazen power grab without a plausible basis for overturning the results of a democratically conducted election?  I expect the federal courts would take a very close look at such a thing.