All posts by Rick Hasen

“Scoop: Biden taps new election money regulator”

Axios:

President Biden plans to nominate election law attorney Dara Lindenbaum to the Federal Election Commission, Axios has learned.

Why it matters: The nomination gives Biden an opportunity to try to shape some U.S. election rules in the wake of Congress’ failure to advance sweeping election reform.

Lindenbaum’s pick comes on the 12th anniversary of the Supreme Court’s Citizens United decision, which struck down a ban on corporate political spending.

What’s happening: If confirmed, Lindenbaum, a Democrat, will replace FEC vice-chair Steven Walther, who has served on the commission since 2006.

Walther is an independent, but is generally seen as part of the FEC’s Democratic bloc.

As a result, Lindenbaum likely will not alter the commission’s 3-3 partisan split.

In a statement, Walther said he will continue serving until his replacement is confirmed.

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Hidden Video: Wisconsin Republican Legislator Says said Republicans should “cheat like the Democrats”

Milwaukee Journal-Sentinel:

Two Republican lawmakers were surreptitiously filmed Thursday as one called for cheating in elections and another slammed a Capitol office door in the face of a man distributing a petition to oust Assembly Speaker Robin Vos.  

The videos of Rep. Elijah Behnke of Oconto and Rep. John Spiros of Marshfield were posted on YouTube the day after Vos imposed discipline on a member of his caucus who falsely claimed repeatedly that Wisconsin lawmakers have the power to pull back the state’s 10 electoral votes cast in 2020 for President Joe Biden. 

In one video, Behnke said Republicans should “cheat like the Democrats” in elections, joked about wanting to punch Democratic Gov. Tony Evers over his stay-at-home order,  and criticized Vos’ control over Assembly staffing. …

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“Read the never-issued Trump order that would have seized voting machines”

Politico:

Among the records that Donald Trump’s lawyers tried to shield from Jan. 6 investigators are a draft executive order that would have directed the defense secretary to seize voting machines and a document titled “Remarks on National Healing.”

POLITICO has reviewed both documents. The text of the draft executive order is published here for the first time.

The executive order — which also would have appointed a special counsel to probe the 2020 election — was never issued, and the remarks were never delivered. Together, the two documents point to the wildly divergent perspectives of White House advisers and allies during Trump’s frenetic final weeks in office.

It’s not clear who wrote either document. But the draft executive order is dated Dec. 16, 2020, and is consistent with proposals that lawyer Sidney Powell made to the then-president. On Dec. 18, 2020, Powell, former Trump national security adviser Michael Flynn, former Trump administration lawyer Emily Newman, and former Overstock.com CEO Patrick Byrne met with Trump in the Oval Office…

The draft executive order shows that the weeks between Election Day and the Capitol attack could have been even more chaotic than they were. It credulously cites conspiracy theories about election fraud in Georgia and Michigan, as well as debunked notions about Dominion voting machines.

The order empowers the defense secretary to “seize, collect, retain and analyze all machines, equipment, electronically stored information, and material records required for retention under” a U.S. law that relates to preservation of election records. It also cites a lawsuit filed in 2017 against Georgia Secretary of State Brad Raffensperger.

Additionally, the draft order would have given the defense secretary 60 days to write an assessment of the 2020 election. That suggests it could have been a gambit to keep Trump in power until at least mid-February of 2021.

The full text of the never-issued executive order can be read here.

The draft order also greenlit “the appointment of a Special Counsel to oversee this operation and institute all criminal and civil proceedings as appropriate based on the evidence collected and provided all resources necessary to carry out her duties consistent with federal laws and the Constitution.”

To bolster its provisions, the draft order cites “the forensic report of the Antrim County, Michigan voting machines.” That report was produced by Russ Ramsland, who confused precincts in Minnesota for those in Michigan, according to the Washington Post. Michigan’s secretary of state, meanwhile, released an exhaustive report rebutting election conspiracy theories and concluding that none of the “known anomalies” in Antrim County’s November 2020 election were the result of any security breach.

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“Texas man charged with threatening election, government officials in Georgia”

Washington Post:

The Justice Department on Friday arrested a Texas man and charged him with threatening election and other government officials in Georgia, in the first case brought by a task force formed over the summer to combat such threats, according to court records and a department spokesman.

In an indictment, prosecutors alleged that Chad Christopher Stark posted a message on Craigslist on Jan. 5, 2021, saying it was “time to kill” an elections official, whose name is not included in the court documents.

“Georgia Patriots it’s time for us to take back our state from these Lawless treasonous traitors. It’s time to invoke our Second Amendment right it’s time to put a bullet in the treasonous Chinese [Official A]. Then we work our way down to [Official B] the local and federal corrupt judges,” Stark wrote, according to the indictment.

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My New One at Slate: “What Democrats Need From Mitch McConnell to Make an Election Reform Deal Worth It”

I have written this piece for Slate. It begins:

The debate over whether Democrats should pursue their large voting rights package or a narrower law aimed against election subversion became moot on Wednesday when Democrats could not muster up enough votes to tweak the filibuster rule to pass their larger package. Some Republicans are now making noise that they would support narrower anti-election subversion legislation centered on fixing an 1887 law known as the “Electoral Count Act.” Democrats should pursue this goal but think more broadly about other anti-subversion provisions that could attract bipartisan support. Bipartisan, pinpointed legislation is the best chance we have of avoiding a potential stolen presidential election in 2024 or beyond….

With the wide option off the table, the operative question is how best to go narrow as more Republicans, including most recently House minority leader Kevin McCarthy, signal they might be open to such a bill. Sens. Manchin and Susan Collins are among a group of senators working on reform. Bipartisan buy-in is especially important because it means that both sides are more likely to feel bound by the rules if a future dispute arises.

Fixing the Electoral Count Act is a no-brainer. As Slate’s Mark Joseph Stern recently wrote, former President Donald Trump’s attempt to reverse his loss to Joe Biden in the electoral college depended upon exploiting holes and ambiguities in the poorly-drafted set of rules for Congress to certify Electoral College results from the states. Stern says Democrats should “seize the moment to get this done.”

If Republicans are really prepared to come to the table (and that remains a big if), Democrats should not limit themselves to small tweaks to the Electoral Count Act such as ones that would simply limit the vice president’s discretion in presenting state electoral college votes to Congress. Of course Republicans would be inclined to support such a change when the next counting of electoral college votes will be presided over by Democratic Vice President Kamala Harris.

Other potential ECA changes should include raising the threshold for objecting to state electoral college votes; right now it takes only one senator and one representative to raise an objection. There are other creative ideas out there as well, such as involving federal courts in resolving certain disputes when there are competing electoral college slates submitted by officials from a state. It is in the interest of both Republicans and Democrats to prevent manipulation of the process and ensure that the winner of the election is actually declared the winner. The more that can be clarified in advance behind the veil of ignorance, the better all who believe in democratic elections are going to be.

But ECA reform should not be the only thing on the agenda in any bipartisan talks to prevent subversion. I’ve proposed a long list of reforms that don’t have a partisan valence. Consider, for example, a requirement that voters cast their ballots using equipment that produces a paper ballot that can be recounted in the event of a dispute over the winner of the election. Some Americans still vote on wholly electronic voting machines, where the only proof of the election winner is code spit out by a computer. In an era when voters distrust election results and manipulators like Trump seek to sow doubt in election integrity, physically tangible ballots that can be examined by a court or other neutral actor in the event of a dispute are indispensable. A provision requiring paper ballots was included in the larger voting bill that went down to defeat earlier this week, but there’s no reason it can’t also be part of any ECA reform….

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“Democrats Voting Rights Debacle”

Andrew Prokup for Vox:

Sometimes there is no plan.

Democrats’ big voting rights push is headed for a brick wall in the Senate — again. To get their bill past the filibuster, they need all 50 Senate Democrats to support changing the chamber’s rules. And Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) still refuse to do so.

With failure imminent, finger-pointing and second-guessing about Democrats’ voting rights strategy has become rampant. “Has there ever been a legislative campaign this dumb, doomed and disastrous from the beginning?” one Democratic campaign professional griped to me, speaking anonymously to more freely criticize his party’s strategy.

It’s become clear that the party never had a plausible plan for success on voting rights. Congressional leaders, activists, and outside groups have mostly been in lockstep trying to unite Democrats around a sweeping legislative package, then charging full steam ahead into a filibuster. The hope was, apparently, that persuasion or pressure would spur Manchin and Sinema to abolish or weaken the filibuster, even though they’d repeatedly vowed they wouldn’t.

All along, some Democrats have been quietly skeptical on both tactical and substantive grounds, as I wrote last year. They argued that the likely impact of the bills for “saving democracy” was exaggerated, and that their chances of success were far lower than leaders were admitting. An adviser to a prominent Democratic donor worried that discussions on the topic were becoming “exercises in unreality,” per an email obtained by Politico….

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“As Giuliani coordinated plan for Trump electoral votes in states Biden won, some electors balked”

WaPo:

The extent and particulars of the behind-the-scenes coordination — and the refusal by some Trump electors to go along with the plan — have not been previously reported. The campaign scrambled to help electors gain access to Capitol buildings, as is required in some states, and to distribute draft language for the certificates that would later be submitted to Congress, according to the former campaign officials and party leaders.

The campaign also worked to find replacements for the electors who were unable to participate, or unwilling. Among the unwilling were a state GOP chairman, a lawmaker who was one of the first in Congress to endorse Trump and ason of legendary Republican senator Johnny Isakson, The Washington Post found.

When the electoral college votes were cast, Trump’s allies claimed that sending rival slates to Washington echoed a move by Democrats in a close race in Hawaii six decades earlier. They said they were merely locking in electors to ensure they would be available if courts determined that Trump had won any of those states. Republican electors in two additional states, Pennsylvania and New Mexico, sent certificates, but those documents explicitly stated that they were to be considered only if the election results were upended.

In ways that were not publicly known until months later, however, the rival slates were leveraged as evidence in last-ditch efforts to give Vice President Mike Pence the ability to reject Biden’s victory when he presided over the electoral vote count in the U.S. Capitol on Jan. 6, 2021….

The Post attempted to interview the 15 Trump electors in those key states who were replaced ahead of the electoral vote. Several of them said they were recovering from covid-19 at the time or had other obligations. All the names are listed in documents the watchdog group American Oversight obtained through a public records request to the National Archives and Records Administration.

Among the electors who declined to participate was Pennsylvania GOP Chairman Lawrence Tabas, an election-law expert who had defended Trump in 2016 against a recount push by Green Party candidate Jill Stein.

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“Trump campaign officials, led by Rudy Giuliani, oversaw fake electors plot in 7 states”

CNN:

Trump campaign officials, led by Rudy Giuliani, oversaw efforts in December 2020 to put forward illegitimate electors from seven states that Trump lost, according to three sources with direct knowledge of the scheme.

The sources said members of former President Donald Trump’s campaign team were far more involved than previously known in the plan, a core tenet of the broader plot to overturn President Joe Biden’s victory when Congress counted the electoral votes on January 6.Giuliani and his allies coordinated the nuts-and-bolts of the process on a state-by-state level, the sources told CNN. One source said there were multiple planning calls between Trump campaign officials and GOP state operatives, and that Giuliani participated in at least one call. The source also said the Trump campaign lined up supporters to fill elector slots, secured meeting rooms in statehouses for the fake electors to meet on December 14, 2020, and circulated drafts of fake certificates that were ultimately sent to the National Archives.

Trump and some of his top advisers publicly encouraged the “alternate electors” scheme in Pennsylvania, Georgia, Michigan, Arizona, Wisconsin, Nevada and New Mexico. But behind the scenes, Giuliani and Trump campaign officials actively choreographed the process, the sources said.

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“New Filings Reveal Another Billionaire Behind the Big Lie”

Daily Beast:

It’s usually the images of a violent mob attacking the U.S. Capitol that are associated with the effort to overturn the 2020 presidential election. But as more financial records become public, another image is emerging—of billionaires in MAGA gear writing large checks.

And one billionaire in particular.

Among the ranks of “dark money” groups and anonymous megadonors who bankrolled the effort is a familiar name in GOP fundraising circles: Dick Uihlein, founder of the multinational Uline shipping company.

According to tax disclosures first published online by the Center for Media and Democracy, Uihlein’s nonprofit—the Ed Uihlein Family Foundation—poured millions of dollars in 2020 into a sprawling number of groups connected to efforts to challenge Joe Biden’s victory and reimagine election law, as well as other right-wing extremist organizations, including ones designated as hate groups.

And the money is pure Uihlein—the foundation’s $16.8 million in 2020 donations came exclusively from Dick Uihlein himself. And over the course of that pivotal year, the organization gave it all away.

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“Supreme Court Seems Ready to Back Ted Cruz in Campaign Finance Case”

Adam Liptak for the NYT:

The Supreme Court seemed ready on Wednesday to side with a challenge to a federal campaign finance law brought by Senator Ted Cruz, Republican of Texas, in what would be the latest in a series of decisions dismantling various aspects of campaign finance regulations on First Amendment grounds.

The law Mr. Cruz challenged places a $250,000 limit on the repayment of personal loans from candidates to campaigns using money from postelection donations. Seeking to test the constitutionality of the law, Mr. Cruz lent $260,000 to his 2018 re-election campaign.

A related regulation allows repayment of loans of more than $250,000 so long as campaigns use pre-election donations and repay the money within 20 days of the election. But the campaign did not repay Mr. Cruz by that deadline, so he stands to lose $10,000….

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FairVote Report on the Use of Ranked Choice Voting in NYC

FairVote:

This report examines the first citywide ranked choice voting (RCV) elections in New York City, conducted in June 2021. FairVote analyzed campaign activity, voter turnout, demographic trends, and cast vote records.

We find that RCV helped elect the most diverse NYC government ever, voter turnout at its highest point in decades, voters in all demographic groups used rankings at a high rate, and RCV winners had broad consensus support from the voters. The report concludes with recommendations for best practices in future New York City RCV elections.

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“BREAKING: Fulton DA requests special grand jury for Trump probe”

AJC:

Fulton County District Attorney Fani Willis is requesting a special grand jury to aid in her investigation of former President Donald Trump and his efforts to overturn Georgia’s 2020 election results.

In a Thursday letter to Christopher S. Brasher, chief judge of Fulton County’s Superior Court, Willis said the move was needed because a “significant number of witnesses and prospective witnesses have refused to cooperate with the investigation absent a subpoena requiring their testimony.”

She cited comments Secretary of State Brad Raffensperger made during an October 2021 interview with NBC News’ Chuck Todd.

Special grand juries are rarely used in Georgia but could be a valuable tool for Willis as she takes the extraordinary step of investigating the conduct of a president while he was in office.

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