Category Archives: election subversion risk

ELB Podcast Episode 4:4: Lynn Vavreck & Chris Tausanovitch: Lessons for Democracy from the 2022 Midterm Elections

New ELB Podcast:

Did the 2022 U.S. midterm elections demonstrate that we have moved beyond risks to American democracy?

What explains continued, persistent divisions across the American public along party lines?

Does there remain a potential for violence associated with future U.S. elections?

On Season 4, Episode 4 of the ELB Podcast, we speak with Lynn Vavreck and Chris Tausanovitch of UCLA’s political science department.

You can subscribe on SoundcloudApple Podcasts, and Spotify.

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“Trump expresses solidarity with Jan. 6 rioters who stormed the Capitol”

WaPo:

Former president Donald Trump expressed solidarity with the mob that attacked the U.S. Capitol on Jan. 6, 2021, sending a video of support to a fundraising event Thursday night hosted by a group called the Patriot Freedom Project that is supporting families of those being prosecuted by the government.

“People have been treated unconstitutionally, in my opinion, and very, very unfairly, and we’re going to get to the bottom of it,” he said in the video, which appeared to have been shot at his Mar-a-Lago estate in Palm Beach, Fla. “It’s the weaponization of the Department of Justice, and we can’t let this happen in our country.”

Trump, who last month announced a 2024 White House bid, pledged that in coming months, he would take a close look at what he characterized as “a very unfair situation.”

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“Cochise County, after disregarding state elections law, may go to court without attorney”

Arizona Republic:

Cochise County officials may go to court Thursday without an attorney to represent them against charges that they broke the law by failing to certify the results of the Nov. 8 election.

County supervisors on Tuesday voted to hire attorney Bryan Blehm to defend them and the county government against two lawsuits, even though they had not discussed the matter with him. On Wednesday, they were caught flat-footed when Blehm declined the offer, as did another attorney he had recommended.

The three supervisors are due in a Bisbee courtroom at 1 p.m. as a judge considers requests from Secretary of State Katie Hobbs, as well as a retiree group, to order the board to certify election results. That certification, by law, was due Monday. But on a 2-1 vote, the board voted to delay a decision until week’s end.

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“The Bottom-Up Election-Denial Strategy; It’s wrong, it seems illegal, and it’s probably not going to work. For now.”

Elaine Godfrey for The Atlantic:

Something that became very clear in 2020 is that America’s election system relies not on spelled-out rules and regulations, but on human beings acting honestly. Before 2016, the certification process was not used as a weapon to fight back against a disappointing result. “That’s not how healthy democracies function,” Tammy Patrick, the program CEO for the election center at the National Association of Election Officials, told me. And American democracy is only as healthy as its weakest link.

What happens next in Cochise County may have little significant effect on the rest of the country. But Cochise serves as a reminder that the election-fraud myth persists. And in places where its believers have unchecked power, they will do their utmost to flex it.

The hope was that, after major midterm losses and continued rebukes from the courts, the election-denial movement would peter out—that Stop the Steal types might simply grow tired of failing. But if Trump is a viable candidate for president in 2024, you can expect him to sing from the same songbook he used in 2016 and 2020. Other candidates will amplify those lies, too, if they can benefit from doing so. Whether election denialism will survive independently of Trump is hard to anticipate. But Republicans “have seen that while it may not be the way to gain office, it is certainly the way to drive donations and fundraising and elevate your stature in the party,” Patrick said.

Cochise is a useful stress test for America’s electoral system “in terms of demonstrating the continued dangers to our democracy”—and what can be done about them, Rick Hasen, the director of the Safeguarding Democracy Project at UCLA, told me. Congress should pass reforms to the Electoral Count Act, Hasen said. States can also try to prevent what’s happening in Cochise County from recurring in 2024. Colorado passed legislation this year clarifying its rules about certification. But state leaders are similarly well positioned to make the waters of democracy muddier. In 2021, Arizona Republicans tried and failed to pass legislation that would allow the state legislature to reject the results of an election it didn’t support. An upcoming Supreme Court decision on the authority of state legislatures in administering elections will be incredibly consequential to any future election-subversion efforts.

Over the past six years, millions of people in this country have been encouraged by political leaders on the right to see themselves as the real Americans—the nation’s true rulers—who are in danger of being cheated out of their political inheritance by voter fraud on the left. They’ve been trained to respond to electoral losses with deflection, conspiracy, and dishonesty. They don’t need Trump around to keep doing that.

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“Election certification delays few, but a ‘test run’ for 2024”

AP:

Before November, election officials prepared for the possibility that Republicans who embraced former President Donald Trump’s lies about voter fraud would challenge the verdict of voters by refusing to certify the results.

Three weeks after the end of voting, such challenges are playing out in just two states, Arizona and Pennsylvania, where Democrats won the marquee races for governor and U.S. Senate.

Legal experts predict the bids are doomed because local governmental bodies typically don’t have the option to vote against certifying the results of their elections. It also reflects the limited ability of election conspiracy theorists to disrupt the midterms. One rural Arizona county has drawn court challenges after its refusal to certify, but another flirting with blocking certification backed off amid legal threats.

In Pennsylvania, a handful of the state’s 67 counties have delayed certification because of recounts demanded by local conspiracy theorists in scattered precincts. But in most states, certification has gone smoothly.

“Before Election Day, I thought Republicans would exploit the certification process to undermine election results,” said Marc Elias, a Democratic attorney who has sued to compel the lone Arizona county to certify.

That there’s only one county delaying so far in that important battleground state, where Republican candidates who denied Joe Biden’s victory in the 2020 presidential race ran unsuccessfully for governor and secretary of state, is “good news, and a bit of a surprise,” Elias said.

The outcome is a reflection of the diminished opportunities election conspiracy theorists have to control elections after a number of their candidates were routed in statewide elections for positions overseeing voting. They’re largely left with a growing footprint in conservative, rural counties. Still, that’s enough to cause headaches for having the election results certified on a statewide basis, raising concerns about how rural counties might respond after the next presidential election.

“It is one of the few places where election deniers have a lever of power,” Rick Hasen, a law professor at the University of California, Los Angeles, said of the local political bodies charged with certifying election results in most states. “It’s a good test run for 2024, showing state courts they’re going to have to step in.”

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“Oath Keepers Leader Convicted of Sedition in Landmark Jan. 6 Case”

NYT:

Stewart Rhodes, the leader of the far-right Oath Keepers militia, and one of his subordinates were convicted on Tuesday of seditious conspiracy as a jury found them guilty of seeking to keep former President Donald J. Trump in power through a plot that started after the 2020 election and culminated in the mob attack on the Capitol.

But the jury in Federal District Court in Washington found three other defendants in the case not guilty of sedition and acquitted Mr. Rhodes of two separate conspiracy charges.

The split verdicts, coming after three days of deliberations, were nonetheless a victory for the Justice Department and the first time in nearly 20 trials related to the Capitol attack that a jury decided that the violence that erupted on Jan. 6, 2021, was the product of an organized conspiracy.

Seditious conspiracy is the most serious charge brought so far in any of the 900 criminal cases stemming from the vast investigation of the Capitol attack, an inquiry that could still result in scores, if not hundreds, of additional arrests. It carries a maximum penalty of 20 years in prison.

Mr. Rhodes was convicted of sedition along with Kelly Meggs, who ran the Florida chapter of the Oath Keepers at the time of the Capitol attack. Three other defendants in the case — Kenneth Harrelson, Jessica Watkins and Thomas Caldwell — were found not guilty of sedition.

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Greg Sargent: “New Trumpist threats in Arizona make electoral college reform urgent”

Greg Sargent WaPo column:

At first glance, the spectacle of the Incredible Shrinking Kari Lake might be cause for optimism. Lake is contesting her loss in the Arizona governor’s race, but in so doing, she’s shriveling into an almost cartoonish figure with no hope of prevailing — a sign, along with the defeat of other key election deniers, that this year’s outcome has sharply diminished the denialist threat.

But on closer inspection, the efforts by Lake and other Republicans allied with her — which include refusing to certify election results — show that the threat of Trumpist election denialis very much alive. This strengthens the case for fixing the Electoral Count Act of 1887, which would safeguard against such threats in the future.

Unfortunately, some election reformers are worried that mending the ECA might not get done in the lame-duck session. That would mean it doesn’t get done at all once Republicans take control of the House next year.

“I’m deeply concerned,” Matthew A. Seligman, a legal scholar and longtime proponent of ECA reform, tells me. “It’s getting late. I’m concerned that things are slipping.”

Election law scholar Richard L. Hasen adds that he’d like to see Democratic leaders “affirmatively” declare that ECA reform is a lame-duck “priority.”

“There’s no way Republicans in the House are going to move anything changing the rules that Donald Trump tried to exploit,” Hasen told me. Trump’s 2020 election-theft effort tried to exploit many of the ECA’s flaws, and thereform under considerationwould close off those pathways to a future stolen election.

Versions of ECA reform have advanced in the Senate and the House, but it’s hard to see either passing as a stand-alone bill with only a few weeks left in the lame-duck session. That would chew up valuable floor time with much else left to do, including funding the entire government.

So, the most likely option at this point, a congressional aide tells me, is for ECA reform to get attached to thatend-of-year spending bill. It’s reasonable to worry this might not happen, or to remain vigilant until it gets done.

The case for attaching ECA reform to a spending bill is complicated. Right now, 10 GOP senators support the Senate version of reform — the number required to overcome a filibuster. Yet even ifECA reform were to geta stand-alone vote, Trumpist GOP senators — such as Josh Hawley of Missouri or Ted Cruz of Texas — could seek to derail it with poison-pill amendments.

What’s more, a stand-alone vote could raise the profile of ECA reform, subjecting it to attacks from Trump and others. That could drive away some of those 10 supportive GOP senators. Attaching reform to a spending bill might get it through with less attention.

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“Pennsylvania county deadlocks on certifying election results”

Philly Inquirer:

Officials in a northeastern Pennsylvania county where paper shortages caused Election Day ballot problems deadlocked Monday on whether to report official vote tallies to the state, effectively preventing their certification of the results.

Two Democratic members of the Luzerne County Board of Elections and Voter Registration voted to certify, both Republicans voted “no” and the fifth member, Democrat Daniel Schramm, abstained.

Schramm said in a phone interview several hours later that after the meeting he received assurances that few if any voters were unable to cast ballots and that all provisional ballots had been counted. He said he planned to vote in favor of certifying the results at a board meeting set for Wednesday.

“I wanted to research to see exactly how many people were just not allowed to vote. I couldn’t find any,” Schramm said.

He said elections officials contacted 125 judges of elections from the county’s 187 precincts “and they reported nobody being turned away.”

A judge extended voting in Luzerne by two hours, to 10 p.m., during the Nov. 8 election after the supplies ran short at some polling places.

Monday is the deadline for counties to certify general election results to the state. In a statement, the Department of State said it was contacting Luzerne officials “to inquire about the board’s decision and their intended next steps.”

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A curious litigation strategy in the Cochise County certification dispute

On the heels of the Chochise County Board of Supervisors’ decision not to approve the county’s canvass, I noted yesterday that I expected a mandamus action filed in the Arizona Supreme Court. But I was wrong.

Two actions were filed, both in Arizona Superior Court in Cochise County. One was brought by Secretary of State Katie Hobbs, represented by States United Democracy Center. The other was brought by the Arizona Alliance of Retired Americans, represented by the Elias Law Group.

Arizona Alliance recently botched (in my judgment) a voter intimidation case in federal court by seeking overbroad relief, as I noted at the time. The more narrowly-tailored relief in a parallel case brought by Protect Democracy was then promptly successful. Arizona Alliance briefly sought an emergency appeal from the federal court’s rejection, then abandoned it once it saw the parallel lawsuit was successful.

States United recently weighed into a Pennsylvania election dispute this summer, seeking mandamus relief, which, as I noted at the time, didn’t appear to be the appropriate relief. But they also (properly) sought injunctive relief in the trial court. The Pennsylvania court (appropriately) rejected the mandamus claim and granted the injunctive claim.

My initial thought in this Cochise County dispute was that litigation would track the litigation this summer in a state next door, New Mexico. Mandamus is appropriate (unlike this summer’s Pennsylvania case) because, like in New Mexico, there’s a ministerial (non-discretionary) duty from the board. The Arizona Supreme Court has original jurisdiction in mandamus cases. An original action could be swiftly filed there, and the case more speedily and tidily resolved, without the more time-intensive opportunity for appeal. (Indeed, this is perhaps the greatest advantage of mandamus over injunctive relief.)

There are tradeoffs, of course. For one, Hobbs sought injunctive and declaratory relief in addition to mandamus relief. This is perhaps a belt-and-suspenders approach, but it also may limit the forum for relief. (Arizona Alliance only sought mandamus.)

For another, the Arizona Supreme Court has discretion to decline jurisdiction and could send it back to the superior court, eating up time. But in a time-sensitive matter with effectively no factual investigation necessary, it strikes me that the Arizona Supreme Court, like state supreme courts in Michigan and New Mexico recently, would take up mandamus and act promptly.

Another possibility is seeking “local buy-in.” The notion that the county would refuse to send the votes of this Republican-leaning county into the state certified total is certainly controversial, even among Republicans in the county, and perhaps the effort is to secure a local judgment. And maybe local officials would comply after a local judge issues an order against them, I suppose.

There’s still some time, of course, but the formal deadline for the state to certify the results is December 1, and it has some leeway to move as late as December 8.

In my judgment, it’s a curious move for these two sets of plaintiffs to independently choose trial court, when the state supreme court has been the preferred place for mandamus relief in election disputes like this in recent years, and where time is of the essence. (Arizona Alliance apparently filed first, and I’m not sure that affected Hobbs’s decision.) That said, there’s still some time, even if not much. And perhaps we’ll see if these strategic litigation decisions yield the most effective result for the litigants at the end–I’m open to watching how these disputes play out to find the optimal path forward for future legal disputes.

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“Was Election Denial a Passing Threat? Or Is It Here to Stay?”

Blake Hounshell in the NYT:

In the months before the midterm elections, a reporter for Time magazine asked Mark Finchem, the Republican nominee for secretary of state in Arizona, why he was so convinced that Donald Trump had won the state in 2020 despite all evidence to the contrary.

“It strains credibility,” Finchem responded. “Isn’t it interesting that I can’t find anyone who will admit that they voted for Joe Biden?”

It was as succinct an explanation as any for why so many Americans believed the 2020 election had been stolen. Republicans, especially those living in deep-red areas, knew so few Democrats that it beggared their imagination that anyone, as Finchem put it, would vote for one.

Now, two political scientists have put some rigor behind this idea. The more that voters were surrounded by other Republicans, Nicholas Clark and Rolfe Daus Peterson of Susquehanna University report in a forthcoming research paper, the more likely that they were to say that the 2020 election had been stolen, controlling for other factors….

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“Cochise County Board of Supervisors votes to delay certification of election results”

That’s the lede from the Arizona Republic. On the heels of the failed Otero County, New Mexico effort to block certification last summer, which resulted in a mandamus action followed by swift obedience, this effort in Arizona seems doomed to fail. Like many states, Arizona has a state-law equivalent of Federal Rule of Civil Procedure 70, which would allows a court to order another party “to perform any other specific act” if the Cochise County Board of Supervises refuses to comply with the court order. And the Arizona Supreme Court has original jurisdiction over mandamus actions, which means a case could be quickly filed and resolved there without need for layers of appeal. (Secretary of State Katie Hobbs is likely to file a mandamus action shortly.) And there’s no secret trick to throwing out the county’s votes. If the secretary of state fails to receive a county’s results in a timely fashion, final certification is simply postponed under state law. That allows adequate time for judicial resolution.

Jen Fifield has more at Votebeat.

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Must-Read: “Inside the Billionaire-Backed ‘Hub for Election Denial’”

Roger Sollenberger for The Daily Beast:

Right-wing megadonor Dick Uihlein has been funneling tens of millions of dollars to election deniers, but a previously unreported IRS filing shows he has also teamed up with one.

According to its 2021 annual IRS filing, the Uihlein-backed dark money nonprofit Restoration Action Inc. hired Arizona Republican Gina Swoboda as an executive director last year, paying her $108,750 in salary.

Swoboda, a former Trump campaign official and the vice chair of the Arizona Republican Party, is now leading a misguided charge against the ballot count in that state on behalf of GOP gubernatorial candidate Kari Lake.

Swoboda currently serves as “election integrity” coordinator for Lake, whose repeated false claims of voter fraud have ingratiated her to former President Donald Trump and who still refuses to acknowledge her election loss to Katie Hobbs. After the election, Lake promoted Swoboda’s appearance on a right-wing podcast.

In addition to hiring Swoboda, the filing shows Restoration Action’s accounts swelling for the second year in a row.

    According to the filing, in the 12 months following the Jan. 6 attack on the Capitol, Restoration Action’s revenue topped $20.5 million—double what the group raised in 2020, and light years beyond its $64,000 haul in 2019.

    As a 501(c)(4) nonprofit, Restoration Action doesn’t have to disclose the names of its donors, though it is tied to the larger Restoration of America network, funded almost exclusively by the Uihleins. And the document shows that in 2021, one anonymous donor accounted for $19,860,445 of Restoration Action’s total revenue.

    More notable than the influx of cash, however, is the spike in spending. The nonprofit not only doubled its income from 2020 to 2021, it also began handing out more money. In the year after the Jan. 6 insurrection, Restoration Action gave more than $9.6 million to conservative causes, most of them laser-focused on so-called “election integrity” projects. The year before, that number was a little shy of $1.4 million.

    Brendan Fischer, deputy executive director of good government group Documented, which shared the filing with The Daily Beast, said the disclosure shows that anti-democratic forces have deep pockets.

    “Restoration Action is a hub for election denial, including funding some of the key players pushing election falsehoods in Arizona at the moment,” Fischer said. “This is a reminder that there’s big money behind the push to undermine democracy. Through Restoration Action and other entities, an array of groups pushing election conspiracy theories are backed by literally tens of millions of dollars from just one billionaire couple.”

    That billionaire couple—Dick and Elizabeth Uihlein—constitute the biggest Republican donors overall for the 2022 midterms. And the overwhelming majority of their contributions—about 80 percent—have gone to candidates who have denied or questioned the 2020 election results, The Daily Beast previously reported….

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