Thanks to Rick for inviting me to guest-blog the last two weeks. Always a pleasure. Ned Foley is up next, so please feel free to send him any content suggestions.
All posts by Dan Tokaji
Is this the year for election-denying candidates?
The Atlantic, on Mark Finchem of Arizona and others running on Trump’s Big Lie:
You’d think that by now, Mark Finchem would be tired of subverting American democracy. For nearly two years, the Arizona state lawmaker has pushed Donald Trump’s stolen-election lies everywhere he possibly can—QAnon talk shows, Steve Bannon’s podcast, outside the U.S. Capitol building on January 6—and all with the dutiful enthusiasm of a Boy Scout. Despite the lack of any evidence, Finchem has continued to assert that Trump, not Joe Biden, won the 2020 election. This claim has been the bedrock of Finchem’s campaign for Arizona secretary of state.
Finchem, who wears a cowboy hat and bolo tie despite having spent most of his life in Michigan, is not destined to win. He leads the Republican primary, but the party’s voters are still mostly undecided, and he could be a tough sell for independents in a general election. Still, Finchem’s candidacy is one to watch. He and the dozens of other election-denying candidates running across the country are the electoral legacy of January 6 in America. They present the most significant threat to American democracy in decades. And despite the expected electoral hurdles, this might just be their year.
“US election deniers promoting democracy abroad defies reason”
Larry Garber and Edward McMahon in the Hill:
[W]e are concerned that efforts to advance democracy abroad may be compromised by board members of publicly-funded U.S. democracy promotion organizations who deny the legitimacy of the 2020 elections. This concern is exacerbated by the presence of an active promoter of the Big Lie sitting on the board of the National Endowment for Democracy (NED).
Rep. Elise Stefanik (R-N.Y.) not only voted against the certification of the Electoral College votes for President Biden but has also become a leading promoter of debunked conspiracy theories surrounding the 2020 election. Concerned NED staff raised the seeming incompatibility of Stefanik serving as a democracy promoter abroad while being associated with the Big Lie at home. Yet this year, the NED board renewed Stefanik for another term. …
While it is unfortunate that this even needs to be said, board members of organizations committed to promoting democracy abroad should act in a manner that is consistent with adherence to core democratic principles. A range of partisan perspectives is important, but board members should be required to commit to the following principles: not fomenting violence in response to an adverse election outcome; accepting the peaceful transfer of power based on the outcome of an election after judicial remedies have been exhausted and not plotting to undermine the outcome of an election by promoting unfounded conspiracies and disinformation campaigns.
“No major problems with ballot drop boxes in 2020, AP finds”
AP: “The expanded use of drop boxes for mailed ballots during the 2020 election did not lead to any widespread problems, according to an Associated Press survey of state election officials across the U.S. that revealed no cases of fraud, vandalism or theft that could have affected the results.”
Bannon’s Precinct Strategy
For your weekend reading or listening (I won’t say pleasure): Vox’s Sean Illing has this interview with Jennifer Senior, who recently wrote an in-depth feature on Steve Bannon for the Atlantic. Here’s an especially interesting excerpt from the interview with Senior:
What [Bannon] is doing is providing the most radical set of talking points for the Republican Party. He is a font of disinformation. And he’s got a very active audience that will go out and use this disinformation.
And most important: He’s very committed to the precinct strategy. He is getting people precinct by precinct to become election monitors, to become parts of school boards so that they can control the curriculum. If you become a precinct captain, eventually you can have a great deal of power within elections. And you can be quite consequential.
Democrats would do well to take note of this strategy.
We all would do well to take note of this strategy. We are seeing lots of dedicated public servants, including Republicans, Democrats, and people not aligned with either party, leave their jobs as election officials — or seriously thinking about doing so — driven by persistent false claims that the last presidential election was stolen. Harassment and threats have become a fact of life for many people responsible for running elections. While some are sticking it out, others are quite understandably deciding that it’s not worth it. And who’s going to replace them? That’s a question that’s received some public attention, but not nearly as much as it deserves.
“Little-Known Lawyer Pitched Trump on Extreme Plans to Subvert Election”
NYT: “The lawyer, William J. Olson, … promot[ed] several extreme ideas to the president. Mr. Olson later conceded some of them could be regarded as tantamount to declaring ‘martial law’ and could even invite comparisons with Watergate. The plan included tampering with the Justice Department and firing the acting attorney general, according to the Dec. 28 memo by Mr. Olson, titled ‘Preserving Constitutional Order,‘ describing their discussions.”
Update: Here is a link to Olson’s letter.
“Parroting Trump, GOP primary losers cast doubt on elections”
AP: “[T]his year’s Republican primaries … have revealed a new political strategy among numerous candidates: running on a platform that denies President Donald Trump’s defeat two years ago. As some of those candidates lose their own races, they are reaching new frontiers in election denial by insisting that those primaries, too, were rigged.”
Pildes: “It’s not just us. Western democracies are fragmenting.”
Rick Pildes, in the Wash Post:
Three major elections on the same Sunday in June — in France, Colombia and Spain — tell the fundamental story of democracy in our era: the continuous disaffection with government, the collapse of traditionally dominant parties and figures, and the constant search for alternatives — which is quickly followed by yet more disaffection and the search for yet other alternatives. This is no longer a narrative of dysfunction distinctive to one country, if it ever was. The Conservative Party in Britain is now scrambling to find a new prime minister; the government in Italy is near collapse. The nature of political authority has fundamentally changed. Political power has become fragmented, as voters abandon traditional parties and turn to upstart, insurgent parties or independent, free agent politicians from across the political spectrum.
In multiparty democracies, such as the three that held elections last month, the fragmentation of political power makes it more difficult to form governments, causes those governments to be fragile and prone to collapse, and weakens their capacity to deliver effective policies. Politics in the United States, with our well-entrenched two-party system, are nonetheless being shaped by similar forces — although here fragmentation means the Democratic and Republican parties are torn by internal factional conflicts that party leaders struggle to surmount.
“Jan. 6 committee subpoenas Secret Service for missing records”
The House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol issued a subpoena to the U.S. Secret Service on Friday requesting records after a government watchdog accused the agency of erasing texts from Jan. 5 and 6 after his office requested them. …
The subpoena is the first the committee has issued to an executive branch agency.
The text messages could provide insight into the actions of the agency and potentially those of President Donald Trump on the day of the insurrection. Former White House aide Cassidy Hutchinson testified during a hearing last month that Trump wanted to lead the mob from the Ellipse to the Capitol, despite knowing they were armed, and said that she was told by an agent that Trump physically assailed the Secret Service agent who informed him he could not go to the Capitol.
Secret Service spokesman Anthony Guglielmi said Thursday that the agency did not maliciously delete text messages following the request from DHS’s Office of Inspector General. The Washington Post previously reported that the Secret Service began a preplanned, agency wide replacement of staff telephones a month before the Office of Inspector General’s request, according to two people briefed on the document request.
More on this story from NPR. In related news, CNN has this story reporting that a DC officer corroborates Hutchinson’s testimony about a “heated exchange” between the former President and his Secret Service detail after being told that he couldn’t go to the Capitol.
Erie Postmaster’s Defamation Case against Project Veritas for False Reports of Election Fraud Allowed to Proceed
From the introduction to the order denying the motion to dismiss in Weisenbach v. Project Veritas:
Project Veritas is a non-profit media organization founded by James O’Keefe, III. On November 5, 2020, just two days after the November 3, 2020, presidential election, it published a story claiming to have uncovered a voter fraud scheme orchestrated out of the United States Postal Service General Mail Facility in Erie, Pennsylvania. Specifically, the article and accompanying video alleged that Erie Postmaster, Robert Weisenbach, directed the backdating of mail-in ballots in order to sway the outcome of the presidential election in favor of candidate Joseph Biden. Amended Complaint (Am. Compl), § 1. The report relied upon an anonymous whistleblower, later revealed to be Richard Hopkins, a postal employee who claimed he overhead a conversation between Weisenbach and another supervisor. Hopkins stated that Weisenbach’s motive for backdating mail-in ballots was that he was a “Trump hater,” although, in reality, Weisenbach was a supporter of President Donald Trump and voted for him on election day. Am. Compl. $§ 58, 70.
In the days that followed, Project Veritas posted two more video interviews with Hopkins. ‘where he repeated his false claims …. Weisenbach was forced to leave Erie for a time after personal details, including his address, were discovered and disseminated by readers of the Project Veritas stories. …
Weisenbach … brings this lawsuit against Hopkins, Project Veritas, and O’Keefe, alleging claims of defamation and concerted tortious activity. Defendants now seek to dismiss the claims before discovery has even begun by filing Preliminary Objections to Weisenbach’s First Amended Complaint. …
And from the order’s conclusion:
It is apparent that the parties perceive the events of the days following the 2020 presidential election through wildly different lenses. Today’s Opinion recounts those days through the eyes of Robert Weisenbach. As he sees it, Richard Hopkins was acting well outside the scope of his employment when he supplied false claims of mail-in ballot backdating to Project Veritas, and so, jurisdiction over the claims now levied against him does not lie exclusively in federal court pursuant to the Federal Tort Claims Act. Likewise, Weisenbach’s averments are legally sufficient to make out claims of defamation and concerted tortious activity against all Defendants, even under the demanding actual malice standard. Whether Weisenbach will be able to offer adequate evidence to support his claims, and whether a jury would ultimately be willing to credit such evidence after hearing both sides of the story, remains to be seen. For now, it is enough to hold that the averments set forth in the Amended Complaint are sufficient as a matter of law to permit the action to proceed to discovery, where the truth of these claims can begin to be tested in the crucible of our adversarial system.
Accordingly, and for the foregoing reasons, Defendants’ Preliminary Objections to Plaintiff’s First Amended Complaint are overruled.
The media release of Protect Democracy, which represents Weisenbach, is available here.
“Trump campaign operative who delivered Jan. 6 false elector lists is identified”
A little-known Donald Trump campaign operative delivered lists of false electors to Capitol Hill in a bid to get them to Vice President Mike Pence on Jan. 6, 2021, according to two people familiar with the episode.
Mike Roman, then Trump’s 2020 director of Election Day operations, delivered those false elector certificates — signed by pro-Trump activists in Michigan and Wisconsin — to Rep. Mike Kelly’s (R-Pa.) chief of staff at the time, both people told POLITICO. Kelly was a Trump ally in the effort to overturn the 2020 election, and his then-top aide received the documents from Roman before deputizing a colleague to disseminate copies on Capitol Hill, according to both people.
“If Ron DeSantis is Actually Less Dangerous Than Trump, Maybe He Should Say So”
Tim Miller in The Bulwark, on whether Gov. DeSantis does or doesn’t present the same threat to democracy as our last President: “what has struck me about this debate is less the hypotheticals than what is missing from it: any acknowledgement from Ron DeSantis or his staff that they believe he would be less dangerous than Donald Trump.”
“How Announcing His 2024 Campaign Could Be Trump’s Best Legal Defense”
Interesting perspective from Ankush Khardori in Politico Magazine:
[I]t has been clear for quite some time that a reelection bid would be one of Trump’s most potent legal defense strategies, both against the ongoing criminal investigation in Georgia stemming from Trump’s call with Secretary of State Brad Raffensperger and whatever it is that the Justice Department is doing….
Trump does not have to win a reelection bid for this strategy to pay dividends. For months he has sought to politicize the investigation in Georgia by claiming (ridiculously) that the investigation is racially motivated. If he is actively running, he can complicate matters further and inflame his supporters by claiming that Democrats and prosecutors are simply trying to get rid of him because Joe Biden is a terrible president who is on track to lose a reelection bid. That’s an argument that much of the Republican party and conservative media might easily rally around, however dubious it may be in reality. This could, in turn, disincentivize witnesses from coming forward or being as helpful as possible to investigators and prosecutors, particularly Trump’s fellow Republicans and others who might fear his wrath if there’s a chance he’ll get a second term.
Federal Judge Declines to Enjoin Alaska Campaign Disclosure Law
AP has this story on the ruling, which appears to rely on the Purcell doctrine:
A federal judge on Thursday denied a request to block campaign finance provisions of a ballot measure approved by Alaska voters in 2020, finding that the plaintiffs had not demonstrated a likelihood of success on their outlined claims.
U.S. District Court Judge Sharon Gleason in a written ruling also said that in the context of elections, the U.S. Supreme Court has recognized that “‘lower federal courts should ordinarily not alter … election rules on the eve of an election.’” She said the plaintiffs “waited over one year to seek preliminary injunctive relief.”