No one connects the dots like Jane. What a story.
I’ll have more to say soon about the connection between the false claim that the election was stolen and reliance on the “Independent State Legislature” doctrine as briefly described by Jane.
Category Archives: Election Meltdown
My New One in the NY Times on the New Danger of Election Subversion
I have written this NY Times oped. It begins:
A new, more dangerous front has opened in the voting wars, and it’s going to be much harder to counteract than the now-familiar fight over voting rules. At stake is something I never expected to worry about in the United States: the integrity of the vote count. The danger of manipulated election results looms.
We already know the contours of the battle over voter suppression. The public has been inundated with stories about Georgia’s new voting law, from Major League Baseball’s decision to pull the All-Star Game from Atlanta, to criticism of new restrictions that prevent giving water to people waiting in long lines to vote. With lawsuits already filed against restrictive aspects of that law and with American companies and elite law firms lined up against Republican state efforts to make it harder to register and vote, there’s at least a fighting chance that the worst of these measures will be defeated or weakened.
The new threat of election subversion is even more concerning. These efforts target both personnel and policy; it is not clear if they are coordinated. They nonetheless represent a huge threat to American democracy itself.
Some of these efforts involve removing from power those who stood up to President Donald Trump’s attempts to overturn the results of the 2020 election. The Georgia law removes the secretary of state from decision-making power on the state election board. This seems aimed clearly at Georgia’s current Republican secretary of state, Brad Raffensperger, punishing him for rejecting Mr. Trump’s entreaties to “find” 11,780 votes to flip Joe Biden’s lead in the state….
Combating efforts that can undermine the fair administration of elections and vote counting is especially tricky. Unlike issues of voter suppression, which are easy to explain to the public (what do you mean you can’t give water to voters waiting in long lines?!?), the risks of unfair election administration are inchoate. They may materialize or they may not, depending on how close an election is and whether Mr. Trump himself or another person running for office is willing to break democratic norms and insist on an unfair vote count.
So what can be done? To begin with, every jurisdiction in the United States should be voting with systems that produce a paper ballot that can be recounted in the event of a disputed election. Having physical, tangible evidence of voters’ choices, rather than just records on electronic voting machines, is essential to both guard against actual manipulation and protect voter confidence in a fair vote count. Such a provision is already contained in H.R. 1, the mammoth Democrat-sponsored voting bill.
Next, businesses and civic leaders must speak out not just against voter suppression but at efforts at election subversion. The message needs to be that fair elections require not just voter access to the polls, but procedures to assure that the means of conducting the election are fair, auditable and verifiable by representatives of both political parties and nongovernmental organizations.
Congress must also fix the rules for counting Electoral College votes, so that spurious objections to the vote counts like the ones we saw on Jan. 6 from senators and representatives, including Senators Josh Hawley and Ted Cruz, are harder to make. It should take much more than a pairing of a single senator and a single representative to raise an objection, and there must be quick means to reject frivolous objections to votes fairly cast and counted in the states.
Congress can also require states to impose basic safeguards in the counting of votes in federal elections. This is not part of the H.R. 1 election reform bill, but it should be, and Article I, Section 4 of the Constitution gives Congress wide berth to override state laws in this area.
Finally, we need a national effort to support those who will count votes fairly. Already we are seeing a flood of competent election administrators retiring from their often-thankless jobs, some after facing threats of violence during the 2020 vote count. Local election administrators need political cover and the equivalent of combat pay, along with adequate budget resources to run fair elections. It took hundreds of millions of dollars in private philanthropy to hold a successful election in 2020; that need for charity should not be repeated….
Must-Read Nate Cohn: “Georgia’s New Law, and the Risk of Election Subversion”
NYT Upshot column:
What would have happened if the Georgia secretary of state, Brad Raffensperger, had responded, “OK, I’ll try,” in a January phone call after President Trump asked him to “find” 11,000 votes?
No one can be sure. What is clear is that the question has been overlooked in recent months. Public attention has mostly moved on from Mr. Trump’s bid to overturn the election; activists and politicians are focused more on whether to restrict or expand voting access, particularly by mail.
But trying to reverse an election result without credible evidence of widespread fraud is an act of a different magnitude than narrowing access. A successful effort to subvert an election would pose grave and fundamental risks to democracy, risking political violence and secessionism.
Beyond any provisions on voting itself, the new Georgia election law risks making election subversion easier. It creates new avenues for partisan interference in election administration. This includes allowing the state elections board, now newly controlled by appointees of the Republican State Legislature, to appoint a single person to take control of typically bipartisan county election boards, which have important power over vote counting and voter eligibility.
The law also gives the Legislature the authority to appoint the chair of the state election board and two more of its five voting members, allowing it to appoint a majority of the board. It strips the secretary of state of the chair and a vote.
Even without this law, there would still be a risk of election subversion: Election officials and administrators all over the country possess important powers, including certification of election results, that could be abused in pursuit of partisan gain. And it’s a risk that H.R. 1, the reform bill congressional Democrats are pushing, does relatively little to address.
This is an urgent topic that is analytically distinct from the voter suppression concerns with the Georgia law. Although Nate links here to my recent WaPo column on what to include in H.R. 1, and suggests that it is missing a requirement of “nonpartisan election administration,” I’m not sure that would be so easy for Congress to write in terms of the structure that would apply, and it would be much harder to implement than for the one time act of drawing legislative districts.
But I have written about this question in my book, Election Meltdown, and some other recent pieces of mine discuss this question of election subversion and what to do about it:
We Can’t Let Our Elections Be This Vulnerable Again (The Atlantic) (suggesting changes to the rules for counting and certifying electoral college votes)
Donald Trump Should Be Prosecuted for His Shakedown of Georgia’s Brad Raffensperger (Slate)
The Only Way to Save American Democracy Now (Slate)
Election law can’t protect democracy if our representatives are lawless (LA Times)
And much more about this coming in my other writings, including my forthcoming “Cheap Speech” book
“Is Democracy in Danger?” Jim Zirin Interviews Sam Issacharoff
You can watch the video here.
“No Evidence for Voter Fraud: A Guide To Statistical Claims About the 2020 Election”
Andrew C. Eggers, Haritz Garro, and Justin Grimmer have posted this draft on Dropbox. Here is the abstract:
After the 2020 US presidential election Donald Trump refused to concede, alleging widespread and unparalleled voter fraud. Trump’s supporters deployed several statistical claims that supposedly demonstrated that Joe Biden’s electoral victory in some states, or his popular vote in the country, were fraudulently obtained. Reviewing the most prominent of these statistical claims, we conclude that none of them is even remotely convincing. The common logic behind these claims is that, if the election were fairly conducted, some feature of the observed 2020 election result would be unlikely or impossible. In each case, we find that the purportedly anomalous fact is either not a fact or not anomalous.
“The Illiberalization of American Election Law: A Study in Democratic Deconsolidation”
Very much looking forward to reading this from Jim Gardner:
For many years, the dominant view among American election law scholars has been that the Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century, but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the U.S. Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection – a kind of superspreader of populist authoritarianism.
There is, sadly, nothing unusual these days about an apex court reinterpreting a formerly liberal constitutional jurisprudence to support a populist authoritarian regime. Typically, however, constitutional courts pivot toward authoritarianism suddenly, after they have been captured through aggressive court-packing or coercive threats and intimidation. In the United States, however, federal courts retain real independence, and the process of illiberalization has been correspondingly slower and less immediate. In particular, the U.S. Supreme Court has slowly illiberalized American election law in a two-stage process: first, by deconsolidating a liberal jurisprudence into incoherence; and then by reconsolidating it into a form more conducive to authoritarianism. The main strategy by which this has occurred has been an increasingly aggressive deployment of an ever narrower palette of individual rights, gradually narrowing a complex and conceptually rich jurisprudence to a single dimension – a judicial strategy that, in its radical anti-pluralism, is deeply populist, fundamentally illiberal, and profoundly destructive of the inherited liberal democratic settlement of the late twentieth century.
“Extremists Emboldened by Capitol Attack Pose Rising Threat, Homeland Security Says”
Warning that the deadly rampage of the Capitol this month may not be an isolated episode, the Department of Homeland Security on Wednesday said publicly for the first time that the United States faced a growing threat from “violent domestic extremists” emboldened by the attack.
The department’s terrorism alert did not name specific groups that might be behind any future attacks, but it made clear that their motivation would include anger over “the presidential transition, as well as other perceived grievances fueled by false narratives,” a clear reference to the accusations made by President Donald J. Trump and echoed by right-wing groups that the 2020 election was stolen.
“D.H.S. is concerned these same drivers to violence will remain through early 2021,” the department said.
The Department of Homeland Security does not have information indicating a “specific, credible plot,” according to a statement from the agency. The alert issued was categorized as one warning of developing trends in terrorism, rather than a notice of an imminent attack.
TPM Offers Great Narrative Description of Trump and His Allies’ Months-Long Lies About Voter Fraud in An Attempt to Steal the 2020 Election
This from Tierney Sneed and Matt Shuham is a must-read.
“Watchdog Probes Whether Justice Department Officials Tried to Alter 2020 Election Results”
The Justice Department’s inspector general said Monday his office will investigate whether department officials “engaged in an improper attempt” to overturn President Biden’s victory in the 2020 election.
The announcement comes after news reports that former President Donald Trump considered moving to replace the acting attorney general with another official ready to pursue unsubstantiated claims of election fraud. The Wall Street Journal also reported that Mr. Trump pushed the Justice Department to ask the Supreme Court to invalidate Mr. Biden’s win.
Inspector General Michael Horowitz said in a statement that his office will probe “whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election,” adding only that the investigation will “encompass all allegations that may arise that are within the scope” of its jurisdiction.
“Pennsylvania Lawmaker Played Key Role in Trump’s Plot to Oust Acting Attorney General”
When Representative Scott Perry joined his colleagues in a monthslong campaign to undermine the results of the presidential election, promoting “Stop the Steal” events and supporting an attempt to overturn millions of legally cast votes, he often took a back seat to higher-profile loyalists in President Donald J. Trump’s orbit.
But Mr. Perry, an outspoken Pennsylvania Republican, played a significant role in the crisis that played out at the top of the Justice Department this month, when Mr. Trump considered firing the acting attorney general and backed down only after top department officials threatened to resign en masse.
It was Mr. Perry, a member of the hard-line Freedom Caucus, who first made Mr. Trump aware that a relatively obscure Justice Department official, Jeffrey Clark, the acting chief of the civil division, was sympathetic to Mr. Trump’s view that the election had been stolen, according to former administration officials who spoke with Mr. Clark and Mr. Trump.
Mr. Perry introduced the president to Mr. Clark, whose openness to conspiracy theories about election fraud presented Mr. Trump with a welcome change from the acting attorney general, Jeffrey A. Rosen, who stood by the results of the election and had repeatedly resisted the president’s efforts to undo them.
Mr. Perry’s previously unreported role, and the quiet discussions between Mr. Trump and Mr. Clark that followed, underlined how much the former president was willing to use the government to subvert the election, turning to more junior and relatively unknown figures for help as ranking Republicans and cabinet members rebuffed him.
Mr. Perry’s involvement is also likely to heighten scrutiny of House Republicans who continue to advance Mr. Trump’s false and thoroughly debunked claims of election fraud, even after President Biden’s inauguration this week and as Congress prepares for an impeachment trial that will examine whether such talk incited the Capitol riot.
“Referring Former President Trump’s Suspension From Facebook to the Oversight Board”
Today, Facebook is referring its decision to indefinitely suspend former US President Donald Trump’s access to his Facebook and Instagram accounts to the independent Oversight Board. The board was established last year to make the final call on some of the most difficult content decisions Facebook makes. It is an independent body and its decisions are binding — they can’t be overruled by CEO Mark Zuckerberg or anyone else at Facebook. The board itself is made up of experts and civic leaders from around the world with a wide range of backgrounds and perspectives.
We believe our decision was necessary and right. Given its significance, we think it is important for the board to review it and reach an independent judgment on whether it should be upheld. While we await the board’s decision, Mr. Trump’s access will remain suspended indefinitely. We look forward to receiving the board’s decision — and we hope, given the clear justification for our actions on January 7, that it will uphold the choices we made. In addition to the board’s determination on whether to uphold or overturn the indefinite suspension, Facebook welcomes any observations or recommendations from the board around suspensions when the user is a political leader.
Our decision to suspend then-President Trump’s access was taken in extraordinary circumstances: a US president actively fomenting a violent insurrection designed to thwart the peaceful transition of power; five people killed; legislators fleeing the seat of democracy. This has never happened before — and we hope it will never happen again. It was an unprecedented set of events which called for unprecedented action.
In making our decision, our first priority was to assist in the peaceful transfer of power. This is why, when announcing the suspension on January 7, we said it would be indefinite and for at least two weeks. We are referring it to the Oversight Board now that the inauguration has taken place.
The reaction to our decision shows the delicate balance private companies are being asked to strike. Some said that Facebook should have banned President Trump long ago, and that the violence on the Capitol was itself a product of social media; others that it was an unacceptable display of unaccountable corporate power over political speech.
We have taken the view that in open democracies people have a right to hear what their politicians are saying — the good, the bad and the ugly — so that they can be held to account. But it has never meant that politicians can say whatever they like. They remain subject to our policies banning the use of our platform to incite violence. It is these policies that were enforced when we took the decision to suspend President Trump’s access.
Whether you believe the decision was justified or not, many people are understandably uncomfortable with the idea that tech companies have the power to ban elected leaders. Many argue private companies like Facebook shouldn’t be making these big decisions on their own. We agree. Every day, Facebook makes decisions about whether content is harmful, and these decisions are made according to Community Standards we have developed over many years. It would be better if these decisions were made according to frameworks agreed by democratically accountable lawmakers. But in the absence of such laws, there are decisions that we cannot duck.
This is why we established the Oversight Board. It is the first body of its kind in the world: an expert-led independent organization with the power to impose binding decisions on a private social media company. Its decision will be available at the board’s website when it is issued.
My New LA Times Oped: “Election law can’t protect democracy if our representatives are lawless”
I have written this oped for the LA Times. A snippet:
It took the civic virtue of about a dozen Republicans who had some control over the election process to resist Trump’s and his supporters’ incessant entreaties to overturn the will of the people. The president tried to get Georgia’s secretary of state to manufacture 11,780 Trump votes. He pushed state and local canvassing boards to reject election results. He and his allies brought frivolous lawsuits. As Barton Gellman recently explained in the Atlantic, had those virtuous Republicans not resisted Trump’s efforts, we could have had a full-on constitutional crisis, with Congress enabled to vote for sham alternative slates of electors.
These events demonstrate the limits of law in preventing democratic decay. As questions surfaced — could Rudy Giuliani’s claims lead to Pennsylvania’s election results being overturned? What happens if a Republican legislature tries to appoint alternative electors but the Democratic governor objects? Does the vice president have the power to block the presentation of electoral college votes to Congress? — I sought answers taking the law seriously and literally, and I reassured worried citizens that election law offered protections for a free and fair contest.
But the events of Jan. 6 show that at some point we may move outside the realm of law and into the realm of brute power politics and even violence. Had the vice president been killed or the speaker of the House held hostage, niceties about federal jurisdiction, how to handle competing slates of electors, and the precise meaning of the Electoral Count Act would have gone out the window. The actions of the Republicans who rejected valid electoral college votes make me think that if the GOP had held a House majority, they would have ignored the rules and law.
When people fail to obey the law, the law obviously cannot act as a constraint on their behavior. I and others have proposed the legal steps that Congress and states should take to make election law clearer and to remove all forms of discretion to manipulate election results, but these proposals are meaningless if political actors do not abide by legal rules
If the problem is no longer the shape of the law, but lawlessness itself, our democratic system is in serious jeopardy. The Republican Party is going to have to figure out how to expel the Trumpian elements of the party, something very difficult to do when they make up a majority of Republicans in the House and in many state legislatures as well. Pressure coming from the business community and from society at large will help, but it may not be enough.
“Lessons and Recommendations from the 2020 General Election”
Final report from the National Task Force on Election Crises. Executive summary:
The 2020 election was defined by paradox and contradiction. Thanks to millions of poll workers, election officials, and citizens who stepped up to make our democracy work, the election was secure and free from systemic or significant fraud. A record 160 million Americans voted and had their voices heard. Yet still, voter intimidation and racial disparities in access to the ballot continued, our election system was revealed to be aging and unnecessarily confusing, Americans weathered a wave of disinformation and, of course, there were unprecedented efforts to delegitimize and overturn the election results—ultimately leading to a crisis the likes of which we’ve not experienced in modern history. In the end, Congress counted all of the electoral votes, but only after President Trump sought to both coerce federal and state officials to overturn the results, and incited a violent insurrection.
This attack on our democracy culminated with white supremacist rioters attacking the Capitol seeking to not only overturn the Constitutional order, but also to take hostages and assassinate members of Congress and the Vice President. While American democracy has survived this crisis so far, we will only be able to prevent the next one if we both 1) ensure accountability for all those who incited, abetted, and participated in the insurrection, and 2) adopt preventative reforms based on the lessons we learned in this election. Those lessons and reforms are the focus of this report.The National Task Force on Election Crises is a nonpartisan group that was formed to help the country prevent and confront election crises, in order to protect a free and fair 2020 election. In this report, the Task Force highlights many challenges that emerged in the election, including instances in which the president undermined the electoral process. Of course, the Task Force would have highlighted challenges to a free and fair election and a smooth transition if they came from another presidential candidate.
Election administrators helped mitigate a crisis. State and local officials conducted the general election in spite of extraordinary challenges posed by a global pandemic. Officials from both parties worked together to expand voting options, recruit hundreds of thousands of poll workers, and become expert crisis communicators, often for the first time. At the same time, there were challenges and failures, including long lines in a number of states, complications stemming from absentee ballots, voter intimidation, isolated system malfunctions, and—above all—widespread challenges of disinformation and partisan polarization around efforts to make voting accessible.
Social media companies learned key lessons from 2016. Some platforms adapted their policies to be more vigilant against election-related disinformation in the 2020 election cycle, attempting to contextualize disinformation and slow its spread. That said, false claims were far-reaching, coming particularly from President Trump, his allies, and his family members. These claims resulted in widespread refusal to accept the results, and troubling threats of violence against election officials and others. Social media platforms also were used to both inspire and coordinate participation in the insurrection on January 6th.
Election reporting was careful and voters patient. Because of the unprecedented volume of absentee ballots and lack of pre-canvassing or processing in critical battleground states, preliminary results took much longer than usual. In general, the media and voters were prepared to wait for results and traditional and social media correctly described President Trump’s claims of victory as false. Outlets took care to explain why results may change during counting, were transparent about how election projections are made, and resisted political pressure to interfere with their decision desks. That said, this election proved that responsible reporting is no match for disinformation spread by candidates and political leaders.
President Trump’s refusal to accept the results badly damaged the perception of election legitimacy and led to the insurrection on January 6th. Baseless allegations of fraud, false claims of victory by President Trump, and attempts to overturn the result were supported by many Republican officials. This delayed the presidential transition, helped convince the vast majority of Trump’s supporters that the election had not been legitimate, and led to the attack on the Capitol on January 6th.
Efforts to disenfranchise voters and reverse the outcome were a threat to democracy. Starting on Election Night and continuing through to January, there were concerted efforts to delegitimize the election, seed doubt in the outcome, and overturn the results. These attempts included baseless lawsuits that sought to disenfranchise entire states and pressure state officials to interfere with the counting and certification of results. Attempts to overturn a legitimate, democratic election took a toll on the country and likely caused lasting damage to the perceived legitimacy and long-term stability of American institutions and our system of government.
“Trump Impeached for Inciting Insurrection”
Donald J. Trump on Wednesday became the first American president to be impeached twice, as 10 members of his party joined with Democrats in the House to charge him with “incitement of insurrection” for his role in egging on a violent mob that stormed the Capitol last week.
Reconvening in a building now heavily militarized against threats from pro-Trump activists and adorned with bunting for the inauguration of President-elect Joseph R. Biden Jr., lawmakers voted 232 to 197 to approve a single impeachment article. It accused Mr. Trump of “inciting violence against the government of the United States” in his quest to overturn the election results, and called for him to be removed and disqualified from ever holding public office again.
The vote left another indelible stain on Mr. Trump’s presidency just a week before he is slated to leave office and laid bare the cracks running through the Republican Party. More members of his party voted to charge the president than in any other impeachment….
The top House Republican, Representative Kevin McCarthy of California, conceded in a pained speech on the floor that Mr. Trump had been to blame for the deadly assault at the Capitol. It had forced the vice president and lawmakers who had gathered there to formalize Mr. Biden’s victory to flee for their lives.
“The president bears responsibility for Wednesday’s attack on Congress by mob rioters,” said Mr. McCarthy, one of the 138 Republicans who returned to the House floor after the mayhem and voted to reject certified electoral votes for Mr. Biden. “He should have immediately denounced the mob when he saw what was unfolding.”
Outside the House chamber, a surreal tableau offered reminders of the rampage that gave rise to the impeachment, as thousands of armed members of the National Guard in camouflage fatigues surrounded the complex and snaked through its halls, stacking their helmets, backpacks and weapons wherever they went. Their presence gave the proceedings a wartime feel, and evoked images of the 1860s, when the Union Army had quartered in the building.
“‘Clear and present danger to the republic’: House readies bipartisan impeachment of Trump”
The House convened Wednesday to impeach President Donald Trump for inciting a violent insurrection that — just one week earlier — stormed the U.S. Capitol, battered police officers and sent lawmakers fleeing for safety.
The charge, “willful incitement of insurrection,” is the gravest ever lodged against a sitting president.
The vote, expected in the afternoon, will be delivered in the same chamber where on Jan. 6 officers drew their guns to protect sheltering lawmakers from insurrectionists pounding at the doors. Five people were killed, including a U.S. Capitol police officer who died of injuries sustained during the riots.
“We think the president of the United States constitutes a clear and present danger to the republic,” said Rep. Jamie Raskin (D-Md.), who Speaker Nancy Pelosi appointed Tuesday as the House’s lead impeachment manager to argue for Trump’s conviction in an ensuing Senate trial.
And the vote will be bipartisan. As many as a dozen Republicans are expected to join Democrats in voting to impeach Trump, including the third-ranking GOP member, Rep. Liz Cheney (R-Wyo.), who described Trump as singularly responsible for assembling the mob that attacked the Capitol. Senate Majority Leader Mitch McConnell has privately indicated that Trump’s actions qualify him for removal from office, according to a source familiar with his thinking.