Monthly Archives: November 2022

“Georgia GOP chairman singled out by judge for central role in fake elector plot”


A state judge singled out Georgia Republican Party chairman David Shafer, one of the fake electors for Donald Trump, for the unique role he played in efforts to overturn the 2020 presidential election in the Peach State as part of a ruling on Wednesday.

Judge Robert McBurney, who is overseeing the special purpose grand jury investigation into 2020 election interference in Fulton County Superior Court, ruled that two attorneys for 11 of the so-called “alternate electors” in Georgia can’t represent all of them. McBurney cited Shafer’s central role as an organizer in efforts to overturn the election results.

Fulton County District Attorney Fani Willis, a Democrat, has already informed the entire group of 16 Republicans who served as pro-Trump electors – even though Trump lost the state in 2020 – that they are targets of her probe. The new ruling puts a spotlight on Shafer’s role in particular.

Willis, who is spearheading the investigation into efforts by Trump and his allies to overturn the election, had attempted to disqualify Holly A. Pierson and Kimberly Bourroughs Debrow, who are representing the subset of 11 fake electors, saying their “simultaneous” representation is “rife with serious ethical problems” and conflicts of interest that violate the Georgia state bar’s rules of professional conduct.

In Wednesday’s ruling, McBurney said that Shafer is the “exception” and should be viewed differently than the other electors, and so it is “impractical and arguably unethical for Pierson and Debrow to represent all eleven together.”

“Given the information before the Court about his role in establishing and convening the slate of alternate electors, his communications with other key players in the District Attorney’s investigation, and his role in other post -election efforts to call into question the validity of the official vote count in Georgia, the Court finds that he is substantively differently situated from the other ten clients jointly represented by Pierson and Debrow,” McBurney wrote.

The judge cites evidence – including emails and other records in the case – that underscores Shafer’s unique role, but the nature of those supporting documents remains unclear as they were not detailed in the ruling itself.

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


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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Ninth Circuit upholds California’s two-step recall process

The Ninth Circuit issued its decision in Clark v. Weber, approving California’s two-step recall process. In the recall, voters first vote “yes” or “no” on the recall; after that, they may vote on a new candidate for governor, but the sitting governor is ineligible to appear at the second stage. Some suggested this violated the principle of “one person, one vote,” as a candidate could receive more “no” votes in the first stage than any replacement candidate receives at the second stage. Ned Foley, and I, here at ELB (among others elsewhere) expressed some skepticism about this argument.

A lawsuit followed, and that case reached the Ninth Circuit. In an opinion by Judge Watford (joined by Judges O’Scannlain and Hurwitz), the court upheld the law. From the heart of the opinion:

Continue reading Ninth Circuit upholds California’s two-step recall process
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“FEC scales back digital ad transparency rule after backlash”


Federal election regulators are scaling back a major digital ad transparency measure after an effort to speed it through the regulatory process drew intense internal and external pushback, records show.

Why it matters: A little-noticed, two-word change to a proposed Federal Election Commission regulation could exempt wide swaths of digital ads from new rules designed to step up disclosure in a fast-growing segment of political advertising….

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


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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“Trump Immunity Claim in 2020 Civil Rights Suit Rejected by Judge”


Donald Trump can’t claim presidential immunity to avoid a lawsuit that accuses him of civil rights violations in his efforts to undermine the results of the 2020 election, a federal judge ruled Monday. 

Trump had argued that he was “absolutely immune” from damages for actions within the “outer perimeter” of his official duties as president, and that his post-election activities in 2020 were part of an effort to protect and defend the Constitution. 

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“The Supreme Court Case That’s All About Donald Trump: Even if it’s not explicitly about him at all.”

Quinta Jurecic on thie Moore v. Harper case in The Atlantic:

Over the past several months, both the litigants and outside parties—known as amici curiae, or “friends of the court”—have filed a mountain of briefs hashing out these issues. These amicus briefs preview how much disruption the independent state legislature theory could really create. But more than that, they reveal a legal landscape in which once-wild arguments have suddenly entered the mainstream—a landscape transformed by Donald Trump, not just through his reshaping of the federal judiciary but also through his influence on the ideas that are burbling up. Moore v. Harper may not be about Trump, but it is of his making…

The likelihood that the Supreme Court will adopt Eastman’s 2020 approach—what the law professors Leah Litman and Kate Shaw deem the “‘state legislature as the end of democracy’ theory”—is essentially nil. Indeed, in their reply brief, the North Carolina legislators deny what they term the “scurrilous suggestion” that their argument would provide grounds for an Eastman-style rewrite of the electoral process. But the election-law expert Rick Hasen has warned that “a muscular reading of the independent state legislature theory would provide a fig leaf for state legislators to try to reverse presidential election results and overturn the will of the people in a presidential election.” Hopefully, the judiciary would step in to stop such an abuse of power—but there’s a risk that the Supreme Court might “conclude it is a political question the courts can stay out of,” Hasen told me over email.

And a Supreme Court ruling endorsing some version of the independent state legislature theory in Moore could provide a GOP legislature with legal-sounding cover for such a ploy, even if the theory itself wouldn’t actually bear that weight. Hasen’s own amicus brief—along with briefs filed by the longtime Republican election lawyer Benjamin Ginsberg and a group of conservative lawyers led by a well-respected former judge, Thomas Griffith—warns that a flood of federal litigation challenging actions by election administrators as unconstitutional might create an environment of confusion and distrust that could fuel bogus claims of election irregularities. If the Court adopts the North Carolina legislators’ vision of the independent state legislator theory, Ginsberg wrote, “the credibility of the electoral system” will be a “guaranteed casualty.”

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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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“County supervisors face intense public pressure to reject election results, but most certify anyway”

Jen Fifield for VoteBeat:

Lydia Abril placed a Bible on the podium, adjusted the microphone, and told the elected officials in front of her that she wanted to pass along a message from God.

“Justice? You high and mighty politicians don’t even know the meaning of the word,” Abril read aloud from Psalm 58. The crowd behind her raised their hands in praise, wiggling their fingers in support. “The godly shall rejoice in the triumph of right, they shall walk the bloodstained fields of slaughtered, wicked men.”

The Wickenburg resident’s grievance with the Maricopa County supervisors? Their insistence on voting Monday to certify the county’s midterm election, as required by state law.

All across Arizona on Monday morning, from here, in the state’s largest county, south to Cochise County, and north to Mohave and Yavapai counties, the counties’ supervisors — mostly Republicans — have faced pressure for weeks to reject the election results by the Monday deadline. Republicans lost most top offices, including an open U.S. Senate seat, governor, and secretary of state.  A GOP pressure campaign has targeted the supervisors in all corners of the state, demanding they rerun the election based on vague allegations of malfeasance and machine vulnerabilities. Crowds gathered in boardrooms, and speaker after speaker told supervisors across the state that they did not trust the election and wanted a new one.

In all counties but one, the supervisors followed state law and voted to certify their election. The exception was Cochise County. The two Republicans on the three-member board voted to discuss the certification again on Dec. 2 — Republican Supervisor Tom Crosby said they were not convinced the machines were properly certified, even though the secretary of state’s office has repeatedly sent emails to supervisors providing documentation. In response, the secretary of state’s office sued on Monday evening, asking a court to force the Cochise supervisors to certify.

The court will certainly do so, and will act before the secretary of state is required to certify the statewide election on Dec. 5, several election lawyers in the state told Votebeat last week.

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