All posts by Dan Tokaji

Over to Overton . . .

Thanks to Rick Hasen for allowing me to guest blog these past two weeks. It’s been a crazy time, with both historic and horrific things happening. Keeping track of it all has been exciting, if sometimes exhausting, which makes me appreciate Rick even more.

My dear friend Spencer Overton of GW Law School will be taking the reins of ELB for the next two weeks. Spencer is a treasure. A longtime leader in our field, he led the Joint Center for Political and Economic Studies for almost a decade, before returning to GW Law last year.

On a personal note, I first met Spencer over two decades ago, when I was thinking about going on the law teaching market. We hadn’t met before, but when I reached out to him he couldn’t have been more generous. I’ll always be grateful, and look forward to his insights and perspective over the next couple weeks.

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The Virtual Roll Call and Harris’s Candidacy

After President Biden’s historic announcement earlier today, many people are wondering what will happen next. While no one yet knows for sure, there’s been speculation about the possibility of an open convention or even a “blitz primary.” But the process could turn out to be much quicker and simpler than that.

Before Biden’s withdrawal, the DNC had been planning to have delegates vote through a pre-convention virtual roll call. This was originally intended to address the Ohio’s early deadline for ballot access, but became unnecessary once the state changed its law to accommodate the Democratic Party’s relatively late convention (August 19-22). The DNC was nevertheless planning to conduct this virtual roll call — at first in July, before pushing it back to early August under pressure. It offered some pretty flimsy legal justifications, when the real reason appeared to be running out the clock on those seeking to replace Biden as the nominee.

Now that Biden’s out, it’s unclear whether the DNC will still proceed with the virtual roll call, according to Politico (which reports that it didn’t immediately receive an answer to this question from the DNC). The legal reasons for having this pre-convention vote are still flimsy. But with Democratic leaders and delegates quickly falling in line behind Vice President Harris, there are practical reasons why the party might want to proceed in that fashion.

Having a virtual roll call in early August would avoid a contested convention, with all the risks that entails. If Harris’s nomination is a done deal by then, it will allow for the convention to be a more scripted event celebrating the nominee, as has become the norm. It would also avoid a public intra-party fight, for which I suspect few Democrats have an appetite after the last few weeks.

So while an open convention would undoubtedly be entertaining to watch, I doubt we’ll see that. It’s possible that delegates will vote to nominate Harris before the convention even begins.

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“Stop panicking. Replacing Biden on ballots isn’t a problem.”

Andy Craig in MSNBC: “There is no credible basis for the claims that the Democratic Party’s candidate for president, whoever that may be, will be kicked off the ballot in any state. As things stand currently, no relevant deadlines have passed. The party remains perfectly free to choose its nominee however it wants, and to choose whomever it wants.”

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Breaking: Biden Out — What Happens Now?

First of all, wow! His “My Fellow Americans” letter may be found here. The key paragraph:

It has been the greatest honor of my life to serve as your President. And while it has been my intention to seek reelection, I believe it is in the best interest of my party and the country for me to stand down and to focus solely on fulfilling my duties as President for the remainder of my term. 

Democrats now have to choose a nominee, and we’re in uncharted territory (at least in the modern era). The Washington Post has this graphic explanation of what could happen next this morning, Jeff Greenfield this piece in Politico yesterday, and Vox this one just a few minutes ago. More to come, I’m sure . . .

Update: Biden has issued a second statement, endorsing VP Harris to be the party’s nominee.

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“Republicans could file challenges if Biden replaced, Speaker Johnson says”

Politico on the Speaker’s smoke blowing: “Technically, Biden has not yet been formally nominated to be the Democratic presidential candidate and won’t be until a vote of the delegates selected to the Democratic National Convention. Still, Johnson said there might be grounds for a challenge, given that Biden was the overwhelming winner of the party’s primaries.”

No, there wouldn’t.

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“Trump’s Conviction and Biden’s Poor Debate Sent Big Money Into the Race”


New campaign-finance filings released this week revealed the degree to which Mr. Trump’s conviction on 34 felony counts on May 30 and Mr. Biden’s disastrous debate performance on June 27 became seminal moments in the fund-raising race….

The R.N.C., which had as little as $9 million in cash on hand at end of January, ended June with $102 million in its coffers, nearly double the $54 million it had at the end of May.

The committee’s cash increase is primarily a downstream effect of an enormous spike in small-dollar fund-raising after Mr. Trump’s conviction …. Mr. Trump and allied Republican groups raised roughly $69 million from May 30 — the day of his conviction — to May 31. The $34.5 million or so raised on each of those days more than doubled the record for the best online fund-raising day of the entire campaign by either party….

[Biden’s] best fund-raising days of the race so far came — perhaps surprisingly — after his unsteady debate performance at the end of June. Mr. Biden and his committees raised roughly $28 million over a two-day period between June 27, when the debate took place, and June 28.

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“Legal fight continues with appeals over proposed immigration initiative for Arizona Nov. 5 ballot”


The fight to keep a proposed border initiative off Arizona’s Nov. 5 ballot is not over yet.

Immigrant advocates kept the issue alive this week by filing notice to the state Supreme Court that they will appeal the judge’s ruling.

A Maricopa County Superior Court judge on July 12 rejected an effort by the advocates to keep the proposed initiative off the ballot. The advocates argue that the measure breaks the rules because it deals with more than a single subject.

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“Alaska election officials to recalculate signatures for ranked vote repeal measure after court order”


A state court judge on Friday disqualified numerous booklets used to gather signatures for an initiative that aims to repeal Alaska’s ranked choice voting system and gave elections officials a deadline to determine if the measure still had sufficient signatures to qualify for the November ballot.

The decision by Superior Court Judge Christina Rankin in Anchorage comes in a lawsuit brought by three voters that seeks to disqualify the repeal measure from the ballot. 

…. Rankin set a Wednesday deadline for the division to remove the signatures and booklets she found should be disqualified and for the division [of elections] to determine if the measure still has sufficient signatures to qualify for the ballot.

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Voting Machine Conspiracies Persist


Nearly four years later, zealous supporters of former President Donald J. Trump who promoted the conspiracy theory that Dominion Voting Systems had rigged its machines to rob him of the 2020 election are still at it.

Even though Dominion has aggressively defended itself in court, a network of pro-Trump activists has continued to push false claims against the company, often by seeking to use information gleaned from the very defamation lawsuits the firm has filed against them.

The network includes wealthy business executives like Patrick Byrne, who once ran, and Mike Lindell, the founder of the bedding company MyPillow. Both have sought without credible evidence to put Dominion at the heart of a vast conspiracy to deny Mr. Trump a victory.

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“Trump is poised to bypass his legal woes thanks to judges he appointed”

Politico: “Trump’s three Supreme Court picks formed a decisive bloc to declare presidents immune from prosecution for official conduct — freezing the charges he faces in multiple jurisdictions for trying to subvert the 2020 election and putting his New York conviction in doubt. Then his nominee to the federal court in Florida, Judge Aileen Cannon, handed him another victory by dismissing the charges he faces for hoarding classified documents and concealing them from investigators.”

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“Ohio’s Phantom Menace”

Politico reports that the DNC is forging ahead with its plan for a pre-convention virtual roll call, originally planned to address the since-resolved Ohio ballot access problem: “The Democratic National Convention Rules Committee met virtually on Friday to outline plans for the virtual roll call vote and announced they would meet no later than next Friday, July 26, to vote on the rules. Virtual voting by convention delegates is scheduled to start no earlier than Aug. 1.” More background on the pretextual (in my opinion) basis for forcing an early delegate vote here and here.

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