All posts by Ned Foley

Dems Attempt to Jumpstart S1

NY Times: Meeting at the White House, maybe. “Democrats are close to finalizing a scaled-back bill that activists hope could be a battering ram in the fight over the filibuster.” I still wonder whether the better filibuster strategy is to focus on one issue at a time, starting with redistricting for a variety of reasons including the need to act before new maps are drawn, rather than even a scaled-back version of the omnibus S1. But the whole issue might be moot if Senator Schumer doesn’t want a filibuster fight: “Mr. Schumer has yet to commit to a timeline, and it is unclear if he would want a full-fledged filibuster fight playing out just as he and Mr. Biden are trying to maneuver a bipartisan infrastructure bill through the Senate.”

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“Georgia Republicans take first step to Fulton elections takeover”

Atlanta Journal Constitution reports. The article notes that Fulton County is “home to a tenth of all Georgians.” Under Georgia’s new law, “the State Election Board can replace a county’s election board following a performance review/audit/investigation. Then, a temporary superintendent would enjoy full managerial authority of how the county counts votes and staffs polling places.” Thus, the request for a performance review “by two dozen state senators” is a significant first step “toward a possible takeover of Fulton County’s elections.” 

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USA Today analyzes potential impact of Brnovich

Behind a paywall. A snippet:

“At a time when more than a dozen conservative states have enacted new voting limitations and no evidence of substantial fraud has emerged from the 2020 presidential contest, election law experts say the lower standard could have an enormous impact on a wave of lawsuits that may be filed under the 1965 Voting Rights Act in coming years.”

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1/6 Select Committee Still Planning Its Investigation

Politico reports: “Lawmakers on the Jan. 6 select committee describe their probe’s reach as still undefined.” For what it’s worth, I think it’s important to focus on whether–and if so how–the “Stop the Steal” organizers thought they were going to actually, from their perspective, stop the steal (meaning how they thought that disrupting the joint session of Congress to count the electoral votes would prevent Biden from becoming president on January 20 and how they thought they could give Trump a second term). Did the “Stop the Steal” organizers really believe they could accomplish this, given the Electoral Count Act? If so, why did they have those views? Did they also think that simply by delaying the counting of electoral votes they could somehow extend Trump’s stay in office, despite the Twentieth Amendment and the rules for determining who serves as Acting President in the event that the counting of electoral votes remains incomplete at noon on January 20? These kinds of questions, it seems to me, are important in preparing for a risk of a second “stop the steal” movement on January 6, 2025.

Despite Senators Hawley and Cruz joining Rep. Mo Brooks and other GOP House members in objecting to electoral votes in favor of Biden, the result of the joint session pursuant to the Electoral Count Act was never going to be other than Biden’s victory. And if somehow the counting of electoral votes had been delayed all the way to noon at January 20, Speaker Pelosi would have been entitled to step in as Acting President under the Twentieth Amendment and 3 U.S. Code § 19. If (God forbid) the insurrectionists had been successful in murdering Speaker Pelosi (and also Senator Grassley as president pro tempore of the Senate at the time), then Secretary of State Mike Pompeo would have become Acting President at noon on January 20. Was that the “Stop the Steal” organizers’ objective? If so, to what end? Would Pompeo have attempted to assert power as Acting President indefinitely, or would he have felt obligated to restore order to permit completion of the counting of electoral votes, which would have resulted in Biden becoming president under the Twentieth Amendment for the remainder of his term (albeit in an Inauguration ceremony that had been inappropriately delayed by one ore more days)? Perhaps the Select Committee should call Pompeo as a witness to hear his understanding of the circumstances leading up to, and on, January 6.

But the real risk for January 6, 2025, it seems to me, is that there are more Senators and Representatives like Hawley, Cruz, Brooks, and all the others who were willing to embrace the “Stop the Steal” movement from inside the Capitol despite Attorney General Barr (among many others) having called it “b__sh__.” Is the Select Committee going to be able to tackle that problem? If so, how? And if not, then what?

(Note: this post has been corrected to reflect Senator Grassley’s place in the line of succession on January 6; thanks very much to a reader of the blog for pointing out the erroneous omission.)

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New details on Trump’s efforts to get Acting AG Rosen to assist his election subversion efforts.

Washington Post reports. We know Trump wanted to overturn the result of the election. What we don’t (yet?) know is the full extent of the lengths he went in this effort and whether anything he did crossed the line into seditious conspiracy under 18 U.S. Code § 2384. There is also the possibility of Trump crossing the line into criminal culpability under 18 U.S. Code § 371, which involves intent to defraud the United States. Trump’s various conversations in December and early January concerning so-called “stop the steal” activities, including those he had with Acting AG Rosen, could potentially be relevant to the inquiries that the Select Committee and the current DOJ are pursuing.

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Arizona “audit” update: GOP go-between quits

NBC: Arizona’s former Secretary of State, Ken Bennett, is resigning his role in supervising the Cyber Ninjas on behalf of the state senate. Having been shut out of the process, he announced: “I cannot put a rubber stamp on a product [when] I am being locked out of its development.”

Also, the audit’s “Twitter account, @ArizonaAudit — was permanently suspended by Twitter along with seven other pro-audit accounts that promoted former President Donald Trump’s lies about last fall’s vote.”

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Georgia may not be done revising its election laws

The Atlanta Journal Constitution reports. The Georgia legislature is thinking of new ways to strip power from the Secretary of State’s office, another apparent rebuke to Brad Raffensperger.

To be fair, the whole idea of elected partisans running elections is problematic, but when an elected partisan acts professionally, as Raffensperger did, it’s hard not to be cynical when legislators say they are trying to depoliticize the process by curtailing the Secretary of State’s authority.

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S1 v2: Senate revisits electoral reform

Washington Post reports on today’s meeting among Senate Democrats to bring forward new version of S1, the For the People Act, building upon Senator Manchin’s compromise proposal. There’s also the possibility of new provisions aimed at election subversion. But there’s still no prospect for adoption, absent support from GOP Senators (which seems a daunting hurdle), unless there is some sort of filibuster reform (at least to a “talking filibuster,” which would put pressure on the GOP Senators to sustain their opposition).

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New DOJ warning on pseudo-audits & voting laws

The Department of Justice issued two documents today: one on federal laws applicable to the kind of outsourced “audit” that Maricopa County, Arizona has been conducting; the other providing “guidance” on various federal laws potentially applicable to the changes in voting rules that many state legislatures are adopting.

Politico and The Hill have reports. The audit document is significant in emphasizing the need for states under federal law to preserve chain-of-custody integrity over their voting records that involve federal elections. The other document is noteworthy in warning states that a return to pre-pandemic voting procedures is not a “safe harbor” immune from DOJ scrutiny under the Voting Rights Act. For example, if the reason for the return to previous procedures was motivated by a racial animus (the goal being to cause lower turnout for racial minorities), that would trigger potential liability under section 2 of the VRA notwithstanding that the same procedures had been used previously.

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