JUST IN: Michigan Senate leader issues a readout of meeting with President Trump. pic.twitter.com/dwi3vGHj24
— Kyle Cheney (@kyledcheney) November 20, 2020
The lawyers have not taken that claim to court and have not provided any evidence to support it.
“This is delusional,” said Mark Braden, the former chief counsel at the RNC. “I’m a professional Republican so it’s not easy for me to have to deal with my friends on this. Look — voter fraud occurs. I’ve seen it. It happens. But you have to be realistic about the size and scope of it.”
Republican lawyers interviewed by The Hill said Trump’s early legal challenges on voter fraud were defensible and reasonable, even if they had no chance of changing the outcome of the election. But they’re disturbed by the dark turn things have taken, and worried that Trump’s claims are undermining democracy and misleading millions of his own supporters.
“The Venezuelans didn’t screw around with the voting machines,” Braden said. “That’s 100 percent total nonsense. I don’t know what’s going on here. It’s very dangerous that we’re undermining the system. Democracy isn’t a God-given right. It’s a fragile process. The two most important things are that the person with the most lawful votes wins, and that the people who voted for the losing side also believe their candidate lost. This is undermining that idea and it’s a dangerous thing.”
I’ve just published this new New York Times piece:
The country is coming to a crossroad on Monday. That’s the date Michigan is to certify the results of the 2020 election. Yet President Trump has chosen a state he lost by more than 150,000 votes — more than 14 times the size of his 2016 victory in Michigan — to try to subvert the election.
Having failed in the courts, President Trump is now grasping at a new lifeline: pressuring Republican election officials and legislators to ignore the reality that Joe Biden legitimately won the popular vote in their states. This tactic, now being played out in Michigan, is no doubt sending the anxiety levels of Biden supporters back to where they were before the courts had calmed these efforts by exposing how empty most of the legal claims were.
But this tactic, too, is destined to fail — though it is toxic for the country’s politics….
The Biden campaign and Michigan voters would likely first turn to the state or federal courts. A court would likely issue an order to the state board to certify the result — legally, this is known as issuing a writ of mandamus — because the board’s legal duty is clear and unequivocal once it has received the certified vote totals from the counties. If the resistant board members were still willing to defy the court and go to jail (presidential pardons do not apply to state crimes), a court could also issue the certification itself.
Michigan’s governor also has legal powers she could invoke, though whether she would choose to do so would involve complex political judgments. Under the state’s constitution, she has the power — the constitution, actually, calls it a duty — to remove or suspend from office a canvassing board member for “gross neglect of duty,” “corrupt conduct” or “for any other misfeasance or malfeasance” in carrying out their duties. Failing to certify on the facts in Michigan would easily meet this standard….
One of the many tragedies of what has gone on since the election is that we should be celebrating our achievement at having smoothly managed to conduct an exceptionally high turnout election under the most difficult circumstances. Think of the list of concerns we had in advance of the election: foreign interference; inability to staff polling places; huge lines on Election Day; excessive challenges at the polls or even violent confrontations; high rejection rates of absentee ballots; large numbers of absentees arriving too late to be counted; long delays in mail delivery that compromised the outcome…
Yet the country, mired in baseless accusations of fraud, cannot even see this achievement, let alone celebrate it. Even those who voted for Mr. Biden are too consumed with anxiety about getting safely to Jan. 20 to celebrate the country’s triumph in how well the election was run.
President Trump will undoubtedly continue to try any tactic to fend off the reality that he lost the election. But even if he manages to corrupt a few partisan actors, it will not change the outcome. The election survived the stress test we faced. The post-election process will as well.
The real danger is that the country will become increasingly ungovernable.
CNN:
A GOP Senate source told CNN that the combination of Giuliani’s news conference, as well as the President meddling in the Michigan election process, has some GOP senators reconsidering their silence. This source says most had hoped that Trump’s tirade would have worked itself out by now, but his actions in the last 24 hours make that hope seem more and more distant.
According to the same source, a handful of GOP senators are talking about whether and how to interject in a way that will be most effective with the President. There is some talk of trying to speak to Trump and trying to implore him to go out on a high note by touting wins in the House, as well as helping win the two outstanding US Senate seats in Georgia and taking credit for the Covid-19 vaccine movement, among other accomplishments.
The source emphasized, however, that this is not a leadership position right now — more rank and file Republicans….
North Carolina Rep. Richard Hudson, who will serve on the House GOP’s leadership team in the next Congress, on Friday characterized the unsubstantiated allegations leveled by the Trump team as “breathtaking” and “serious enough that they need to be investigated.”
Hudson said “yes,” states should delay certifying the results until the allegations are “adequately investigated.”
Asked if he’d be OK if state legislatures named electors that differed from the outcome of the vote counts in their states, Hudson told CNN: “Yeah, that’s the constitutional process.”
“I mean, it’s breathtaking to think about,” Hudson said of the allegations. “And if it’s not true, then there needs to be a reckoning on our side.”
Federal law encourages states to resolve disputes over vote-counting by December 8, six days before electors meet in their state capitals to cast their ballots. If Biden’s win is certified by December 8, Congress must recognize the pro-Biden electors.
Under the long-shot theory, Republican-led legislatures could appoint pro-Trump slates of presidential electors, even if Biden carried the popular vote in their state, assuming a state has not certified the vote in time.A
sked on Thursday if his state should delay certifying the election, Arizona Rep. Paul Gosar told CNN: “I believe it should.” Gosar also said the “state has the ability” to name its own electors to the Electoral College if the results aren’t certified as part of the “system set up by our founders.” And when asked if he would support the state legislature naming its own electors, Gosar said: “I do.”
The most recent Trump campaign legal complaint in PA argues, in part, that in Biden-leaning counties, voters were given notice and an opportunity to cure absentee ballot defects and vote a provisional ballot, while voters in Trump-leaning counties were not.
For perspective, here are the numbers for provisional ballots cast statewide in PA (assuming I’ve added up correctly the numbers at the PA’ Department of State website:
Biden: 51,866
Trump: 47,333
Jo Jorgensen: 1,218
In advance, the expectation was that provisional ballots would tilt heavily toward Biden, as did absentee ballots. That’s because voters who show up at the polls and have the types of problems that lead them to have to cast provisional ballots are more likely to come from the groups that tended to support Biden.
In fact, as it turns out, Biden’s vote share among the provisionals was very close to his vote share for all the votes cast in PA. Statewide, Biden has won 50.0% of the vote, based on the most recent numbers, which are still not fully complete. Based on the numbers above, Biden won about 51.65% of the provisionals. If he had won only 50% of the provisionals, consistent with his overall statewide support, he would have had about 1,600 fewer provisional votes.
National Review editorial:
The Rudy Giuliani–led press conference at the RNC yesterday was the most outlandish and irresponsible performance ever by a group of lawyers representing a president of the United States.
If Giuliani’s charge of a “national conspiracy” to produce fraudulent votes in Democratic cities around the country wasn’t far-fetched enough, attorney Sidney Powell ratcheted it up with the allegation that Communist-designed election machinery was used to change the vote from a Trump landslide to a narrow Biden victory. An obvious question is why, if you can manipulate the vote count via machine, you’d need to bother with old-fashioned fraudulent ballots. Powell’s story is that the surprisingly strong Trump turnout “broke the algorithm” of the corrupted machines, and then the fraudulent ballots were desperately hauled in to make up the difference.
This is lawyering worthy of the comments section of Breitbart News.
Ciara Torres-Spelliscy for the Brennan Center.
In a Thursday meeting punctuated by outbursts from attendees, a wheelbarrow full of letters and repeated calls to order, two county clerks recommended a raft of election changes during the first testimony taken in a legislative inquiry into the Nov. 3 election.
The three-hour joint oversight committee hearing was the first to take testimony on Michigan’s Nov. 3 election, where unproven allegations of election fraud and ballot irregularities prompted Michigan lawmakers to subpoena voting-related records from the state to examine the issues.
Some attendees seeking to “Stop the Steal” attended the meeting, grumbling about some responses and laughing when witnesses said dead voters did not vote in Michigan.
Democratic lawmakers questioned the value of the hearing. Democratic Rep. Cynthia Johnson of Detroit yelled at the end of the meeting when she didn’t get a question in, and criticized the GOP-led Legislature for holding such a meeting during a pandemic. She was gaveled down by Republican Sen. Ed McBroom of Vulcan.
AJC:
Secretary of State Brad Raffensperger said “numbers don’t lie” as he plans to certify Georgia’s election results Friday that showed Joe Biden defeated President Donald Trump.
Biden was ahead of Trump by over 12,000 votes in both machine counts and a manual recount of paper ballots.
“Like other Republicans, I’m disappointed our candidate didn’t win,” Raffensperger said during a news conference at the state Capitol. “Working as an engineer throughout my life, I live by the motto that numbers don’t lie. As secretary of state, I believe that the numbers that we have presented today are correct. The numbers reflect the verdict of the people.”
A manual recount and audit of all ballots found that Biden received 12,284 more votes than Trump, according to results released Thursday. The recount was within 500 votes of initial machine ballot counts.
Another bid by an ally of President Donald Trump to overturn the results of this month’s election was roundly rejected in court on Thursday, as a federal judge appointed by Trump turned down a bid to block the certification of President-elect Joe Biden as the victor in Georgia.
At the conclusion of a three-hour virtual hearing, U.S. District Court Judge Steven Grimberg delivered a withering assessment of the suit that a prominent attorney, Lin Wood, filed to try to stop officials from finalizing a tally that has Trump trailing Biden by more than 12,000 votes.
Grimberg said it was clear that, as an individual voter, Wood lacked legal standing to mount the challenge to Georgia’s election procedures. But the judge — a former prosecutor whom Trump nominated last year — also emphasized that evidence of improprieties seemed limited to isolated cases and far short of what would be needed to justify a federal judge stepping in to alter the state’s election results.
“It would require halting the certification of results in a state election in which millions of people have voted,” the judge said. “It would interfere with an election after the voting was done.”
The judge also seemed to allude to the acrimonious atmosphere surrounding the election as a reason to be wary about interfering in the process as Wood requested.
“It harms the public interest in countless ways, particularly in the environment in which this election occurred,” Grimberg said. “To halt the certification at literally the 11th hour would breed confusion and potentially disenfranchisement that I find has no basis in fact or in law.”
Yesterday Jenna Ellis of the Trump campaign (who had comically attacked me for noting that one of campaign’s proposed orders erred in signing a proposed order as if the judge had signed it) said at a press conference that the press did not understand how the law worked and that there was no need for the campaign to produce evidence in its attempt to overturn the results of the election. (“Your question is fundamentally flawed, when you’re asking, ‘where’s the evidence?’ You clearly don’t understand the legal process.”)
Ellis has a point when it comes to a court considering a motion to dismiss a complaint (where the court does not look at the evidence but instead whether the allegations in the complaint are “plausible” and state a claim that a court can grant relief to), but she’s totally wrong when it comes to the question of the campaign’s Motion for a temporary restraining order/preliminary injunction filed in a federal court in Pennsylvania seeking not just to stop certification but to provide a basis for overturning the election.
At this stage in the process, the campaign must produce evidence to support its claims, because a key question that courts look at in deciding whether to grant a motion for a TRO or preliminary injunction is likelihood of success on the merits: which requires showing the law and facts are on your side, at least at this preliminary stage.
But the campaign did not do that. Not only did it not present evidence of fraud, which Giuliani admitted at Tuesday’s court hearing they were not going to do in this case despite loose talk in the complaint: the motion provides no statistical evidence to support its theory that supposed illegal votes could be deducted from Biden and Trump which would hand Trump the victory. It says it has retained an expert but includes no report whatsoever (and the claim is based upon faulty math). The campaign wants a delay in certification (which can come as early as Monday so that it could try to find evidence). This comes too late.
On top of that, their theory that they can just deduct votes based upon some kind of promised (but not provided) statistical analysis is crazy. As Ned Foley, the country’s leading expert in contested elections through American history, explains: “Trump brief in PA fed court opens with admission that it lacks evidence: see p2 n2. It speculates that IF 10% of mail ballots were unlawful, then statistics MIGHT cast doubt on Biden’s win; even math is wrong because Biden’s margin now is 81K, not 75K. No court, especially not a federal court, should negate an election based on this kind of non-showing. Trump seeks bogging the election down in fed court “discovery” of every mail ballot based on nothing more than conjecture that there might be problems with enough of them. If a state-law judicial contest of an election were filed based on nothing more than this kind of speculation, it would be quickly dismissed for lack of factual predicate for going forward. Fed court should not provide end-run around state-law process.”
I’d add that the complaint points to no authority for this kind of deduction, which is not how election contests are typically proven in state court. You’d have to prove (not just surmise) that there were enough illegal votes accepted for Biden combined with enough legal votes that were not accepted for Trump to make up an 81,000 vote difference; you don’t do this with statistics, you do this with actual evidence. And the actual evidence of such illegal votes counted or legal votes not counted in this litigation is: zero.
This lack of evidence is no surprise and it infects the Trump and Trump-allied lawsuits around the country.
Look, the complaint in Pennsylvania is not likely to survive a motion to dismiss: there are strong arguments that the campaign has no standing to bring this claim under Third Circuit precedent; that the claim is barred by the doctrine of laches because the campaign could have brought these claims before the election and to bring it now would disenfranchise hundreds of thousands of Pennsylvania voters and overturn the will of the people based upon no showing of any illegal ballots; that their Bush v. Gore equal protection theory does not apply to this context; and that the appropriate forum to contest an election is a state court rather than a federal court.
But even if the Trump campaign overcame all of these hurdles and the court would take a look at the evidence, their request for relief fails for a fundamental lack of proof. We are in an emergency election contest. You can’t try to get relief two and a half weeks after a federal election without proof but promising proof to come.
As I told the AP, “It’s kind of a fallacy to say, well, Trump might be doing better if he had better lawyers. Part of the reason he doesn’t have good lawyers is he doesn’t have good claims to bring.”
GOP senators like Senator Hawley who say they are waiting to see what evidence is produced in court don’t have to wait any longer. There’s nothing here.
There’s a simple mathematical confusion in this filing. The filing says:
“Instantly, if discovery is granted, prior to the hearing, Plaintiffs will examine these envelopes to determine the percentage of mail ballots that were illegally counted –of which Democratic Candidate Joseph Biden won approximately 75% and President Trump 25%, a 50% margin for Biden.”
That is not a 50% margin for Biden. It is a 50 percentage point margin. In fact, Biden received three times more of the absentee vote than did Trump. The difference between percentages and percentage points is often very large, as this example illustrates.
This is not the worst mistake in the world. It is not uncommon to confuse percentage points and percentages. Still, this is a legal filing in federal court.
The Washington Post:
As Fox News host Tucker Carlson noted on Thursday night, he’s more than willing to give airtime to outlandish claims. “We literally do UFO segments,” he said.
But even Carlson said he was fed up with the total lack of evidence produced by Sidney Powell, one of the Trump campaign’s attorneys, for her unfounded allegation that electronic voting systems had switched millions of ballots to favor President-elect Joe Biden.
“We invited Sidney Powell on the show. We would have given her the whole hour,” Carlson said. “But she never sent us any evidence, despite a lot of requests, polite requests. Not a page. When we kept pressing, she got angry and told us to stop contacting her.”
Carlson also noted: “She never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.”
CNN:
President Donald Trump told an ally that he knows he lost, but that he is delaying the transition process and is aggressively trying to sow doubt about the election results in order to get back at Democrats for questioning the legitimacy of his own election in 2016, especially with the Russia investigation, a source familiar with the President’s thinking told CNN on Thursday.
The President’s refusal to concede, as CNN has previously reported, stems in part from his perceived grievance that Hillary Clinton and former President Barack Obama undermined his own presidency by saying Russia interfered in the 2016 election and could have impacted the outcome, people around him have said.Trump continues to hold a grudge against those who he claims undercut his election by pointing to Russian interference efforts, and he has suggested it is fair game to not recognize Joe Biden as the President-elect, even though Clinton conceded on election night in 2016 and the Trump transition was able to begin immediately.
Trump is also continuing to process the emotional scars of losing to a candidate he repeatedly said during the campaign was an unworthy opponent whose win would amount to humiliation. He again made no public appearances on Thursday, skipping the first coronavirus task force briefing at the White House in more than six months. He is planning to participate in a virtual Asian Pacific Economic Cooperation summit Friday, a senior administration official told CNN.
Trump has heard from a multitude of friends and business associates who have been urging him to at least let the transition begin, even if he doesn’t want to concede, another source who is also familiar with the President’s thinking told CNN. His answer: No. You’re wrong. “Absolutely wrong,” according to one source.
When Trump has been told to get Rudy Giuliani and other members of his legal team off the case, the President has disagreed. He wants to continue the fight, and people close to the President have even expressed concern that he is buying into Giuliani’s false claims that his legal efforts can change the election’s outcome. He has shown no signs of backing down, even as those around him continue indicating that the end is near. Those allies have expressed worry that a sizable faction of the country thinks the election was stolen from Trump and that Biden isn’t receiving national security briefings.
President Trump on Thursday accelerated his efforts to interfere in the nation’s electoral process, taking the extraordinary step of reaching out directly to Republican state legislators from Michigan and inviting them to the White House on Friday for discussions as the state prepares to certify President-elect Joseph R. Biden Jr. the winner there.
For Mr. Trump and his Republican allies, Michigan has become the prime target in their campaign to subvert the will of voters backing Mr. Biden in the recent election. Mr. Trump called at least one G.O.P. elections official in the Detroit area this week after she voted to certify Mr. Biden’s overwhelming victory there, and he is now set to meet with legislators ahead of Michigan’s deadline on Monday to certify the results.
The president has also asked aides what Republican officials he could call in other battleground states in his effort to prevent the certification of results that would formalize his loss to Mr. Biden, several advisers said. Trump allies appear to be pursuing a highly dubious legal theory that if the results are not certified, Republican legislatures could intervene and appoint pro-Trump electors in states Mr. Biden won who would support the president when the Electoral College meets on Dec. 14.
The Republican effort to undo the popular vote is all but certain to fail, as even many Trump allies concede, and it has already suffered near-total defeats in courts in multiple states, including losses on Thursday when judges in Georgia and Arizona ruled against the Trump campaign and its allies….
High-level Republicans in key battlegrounds said they had not been pressured by Mr. Trump.
The office of Butch Miller, the Republican leader of the Georgia Senate, said he had received no overtures from the White House. Both Jake Corman, the State Senate majority leader in Pennsylvania, and Bryan Cutler, the speaker of the House there, said they had not heard from Mr. Trump.
New Josh Douglas for CNN:
Yes, there is election fraud. It’s coming from inside the White House.
President Donald Trump’s attempts to steal the election and win another term are exceedingly unlikely to work. But he is already succeeding in undermining key democratic norms on which our society functions by questioning the results without evidence, falsely alleging voter fraud, and, according to the Washington Post, even reaching out to a local election official charged with certifying results.
Trump, who clearly lost the presidential election by large electoral and popular vote margins, has filed lawsuits in numerous battleground states that have largely gone nowhere. He has lied about massive voter fraud, which doesn’t exist. His lawyer, Rudy Giuliani, even suggested that his goal is to delay certification of the results, enabling Republican legislators to thwart the will of the people and simply award Trump the Electoral College votes he needs to win — an anti-democratic idea that is bound to fail given statements from Republican legislators in key states and Democratic governors who won’t go along with attempts to undermine the electoral process.
And perhaps in the most egregious action to date, Trump personally called Republican Monica Palmer, a local election official in Wayne County, Michigan, after which she sought to change her vote on whether to certify the results.
Who knew the National Geographic wrote stories on these issues, too.
Here’s the filing.
Also pending is the motion to dismiss.
Briefing ends Saturday and certification can come as early as Monday, so I expect a ruling on Saturday or Sunday.
“President Trump’s strategy for retaining power despite losing the U.S. election is focused increasingly on persuading Republican legislators to intervene on his behalf in battleground states Democrat Joe Biden won,” Reuters reports.
“Having so far faced a string of losses in legal cases challenging the Nov. 3 results, Trump’s lawyers are seeking to enlist fellow Republicans who control legislatures in Michigan and Pennsylvania, which went for Trump in 2016 and for Biden in 2020.”
A real headline from the New York Times: “Trump Asks Michigan Lawmakers to White House In Bid to Subvert Election”
From this Jonathan Lai interview:
Tell me about the state legislature’s role with regard to the rest of the process. There are a lot of people worried about some sort of overturning of results.
The electors are selected by the winner of the popular vote. That is in our state statute. The only way, I think — and I’m still not even sure we could do it — the only way the legislature would have a role in electors is if there was no certification of the results. If we were at the time when the Electoral College is going to meet and Pennsylvania’s results haven’t been certified and it’s still challenged in court, and there’s no end to that, then possibly the legislature would have a role there.
But I’ve never suggested that we would do anything but what the law states. The law states that when the Secretary of State certifies the election, the governor appoints the electors. That’s the law. And we will follow the law.
The top two leaders in the Republican-controlled Michigan Legislature are expected to visit the White House Friday, according to a source with knowledge of the plans.
The visits by Senate Majority Leader Mike Shirkey, R-Clarklake, and House Speaker Lee Chatfield, R-Levering, will come as a legal fight plays out in the battleground state with President Donald Trump attempting to challenge the results of the Nov. 3 election.
With Trump’s lawsuits faltering (the campaign voluntarily dismissed its federal suit in Michigan today), the remaining Trump play to subvert American democracy and overturn the result of the election is a crazy electoral college gambit: try to get state legislatures involved to appoint their own electors for Trump.
Senator Shirkey in Michigan has already said he would not go along with such a gambit, but we saw Trump’s armtwisting of Republicans on the Wayne County canvassing board could lead people to change their minds.
If the Michigan legislature got together to vote to overturn the result of the election in which Joe Biden won by 150,000 votes, there would be rioting in the streets in Michigan and throughout the country. It would be an actual attempted coup, to subvert American democracy. It would call into question these Legislators’ own elections as well as put their reelection chances in serious jeopardy.
And it wouldn’t work. The certification process is continuing in Michigan, and there will be a slate of electors for Joe Biden, which will be signed by the governor (and therefore get preference in Congress under the electoral count act if there are competing slates of electors).
And of course flipping Michigan would not be enough to change the electoral college outcome. Trump would have to flip three states. By then there would be full scale civil unrest in the United States.
And the electoral college votes would be counted by both houses of Congress, which include a House led by Democrats. And it includes a likely Republican Senate but with at least a few Republican Senators of principle who would not go along with this. If this led to long stalemate, and no electoral college votes counted for President, Trump would cease to be President on January 20 pursuant to the 20th amendment, and we’d have a temporary president.
So the bottom line: we should worry because this is profoundly antidemocratic and is delegitimizing the victory of Joe Biden in a free and fair election. It is profoundly depressing we still have to discuss this. But it is extremely unlikely to lead to any different result for President.
Tierney Sneed for TPM:
The Census Bureau has identified issues in the data from the 2020 decennial census that will take an additional 20 days or so for it to fix, and thus delay the release of survey’s apportionment data until after President Trump leaves office, TPM has learned.
According to a person inside the Census Bureau, the additional time it will take to reprocess the data in question has pushed back the target date for release of the state population counts until Jan. 26 – Feb. 6.
That would mean President-elect Joe Biden will be in the White House when the Census Bureau delivers to him the numbers for him to transmit to Congress for the purposes of determining how many House seats each state will get for the next decade.
They got caught. As you’d expect.
Ned Foley in WaPo:
If the losing party can’t accept defeat, the whole enterprise of electoral democracy is finished. Two-party competition means each party taking turns depending on what the voters want in any given election.
President Trump himself will never acknowledge this. But the Republican Party institutionally must. That is the critical challenge facing Senate Republicans and Senate Majority Leader Mitch McConnell (R-Ky.): When and how decisively will they pull the plug on Trump’s desperate effort to force upon the nation a second term that he did not earn from the electorate?
If the United States is to adhere to its foundational premise that governments derive their just powers from the consent of the governed, then Senate Republicans as a party in government need to recognize President-elect Joe Biden’s inauguration not merely as a fait accompli they cannot undo but instead the actual choice that the voters genuinely made in this election….
I remain unshaken in my confidence that, when Congress meets on Jan. 6 to perform its constitutional duty, it will properly announce Biden as the election’s winner.
The remaining questions are how many Republican senators will vote for Biden if the matter is put to a vote through challenges to slates of electors — and, more fundamentally, how many Republicans will forthrightly acknowledge the authenticity of Biden’s election.
There is no basis for denying this. Even the most conservative of election law commentators have joined the chorus to observe that courts don’t overturn elections without adequate evidence of invalid votes that actually made a difference in the outcome. The Trump campaign has provided no proof of that kind in any state, much less the three necessary to deny Biden an electoral college majority.
This president’s intransigence is having costly spillover effects. It is taking a toll on Republican voters’ confidence in the election results. It is causing the kind of corrosive behavior that occurred in Michigan, where the Wayne County canvassing board split 2-2 over certifying its vote tallies, despite it being obvious that Biden has won the state by a margin more than 10 times Trump’s 2016 win. The two local Republicans quickly came to their senses, but not before Team Trump tweeted about its “huge win” — and now it seems they to want to revert to rank partisanship.
The longer McConnell and his colleagues allow this unnecessary uncertainty about the election’s outcome to fester, the worse off our democracy will be.
The prevailing view today is that courts should not invalidate election results because of problems unless it is shown that the problems were of such magnitude to negate the validity of which candidate prevailed,” said Edward B. Foley, director of election law at Ohio State University’s Moritz College of Law. This is inherently difficult to do, he added, given how hard it is to provide evidence that disputed ballots were cast in favor of a particular candidate.
Professor Foley, whose book “Ballot Battles” provides a history of disputed elections in the United States, described one example that illustrates how difficult it will be for the president to succeed with his claims. In an election with a margin of victory of 10,000, it would not be enough to show that there were 11,000 invalid votes, he said, “because those invalid votes might have split 50-50, not making a difference to the outcome.” (In Arizona, the closest of the major swing states, Mr. Trump trails Mr. Biden by roughly 10,000 votes.)
Mr. Trump has cited cases where irregularities and fraud have led to new elections. But his most recent examples take isolated incidents of small-scale error or fraud and misleadingly apply them to a national election in which more than 150 million ballots were cast. There was the case in Paterson, N.J., earlier this year, for instance, in which a judge recommended a do-over election for a seat on the City Council after evidence surfaced that mail-in ballots had been tampered with. (Just 240 votes separated the first- and second-place candidates.)
Given all we heard about postal delays, that’s very good news.
Joe Biden’s lead in the presidential election results in Pennsylvania has now surpassed 81,000 votes, far exceeding Donald Trump’s 44,000-vote victory margin there four years ago. Yet the Trump campaign continues to claim in court huge but incalculable levels of fraud, particularly in Philadelphia.
As with cases filed elsewhere around the country, Mr. Trump will not succeed. Even a cursory examination of the data refutes any notion of substantial voting fraud…
Just because Mr. Biden did worse than Mrs. Clinton and underperformed expectations this year does not disprove possible fraud, of course. Central to the “bad things are happening in Philadelphia” claim by Mr. Trump is the notion that a suspicious number of absentee ballots came in for Mr. Biden in Philadelphia. Absentee ballot fraud — either from dead people voting or election officials stuffing ballot boxes — is central to the Trump campaign’s claim of a stolen election. Again, the available evidence suggests nothing irregular.
Mr. Biden received a higher percentage of the vote by mail than he did in the Election Day vote throughout the state. Philadelphia, which is much more Democratic than the rest of the state — 76 percent of the county’s voters are registered as Democrats, compared to 47 percent statewide — lies just where we would expect it to be, given the partisanship of the county.
Skeptics of this analysis are likely to say that it is irrelevant, because the margins were so close that even a small number of manufactured ballots could make a difference. To this, we offer two rebuttals.
The first is that Mr. Biden’s lead in the state, over 81,000 votes, is not close, and continues to grow. Second, for Mr. Biden’s lead to be the result of “stuffed” absentee ballots in Philadelphia would require that over 20 percent of mail ballots there to have been fraudulent. Such a large number of questionable ballots would have tripped off alarm bells for the Democratic and Republican officials who were overseeing the count.
Statistical evidence such as this should not be necessary to cast doubt on the fraud claims being made in court by Mr. Trump’s campaign. The arguments simply are implausible on their face, in Pennsylvania and elsewhere. The allegations suggest a conspiracy or a remarkable coincidence of Republican and Democratic election officials in multiple states looking past or covering up hundreds of thousands of illegal votes.
That’s not all that is implausible. The purported fraud appears to have affected only the top of the ballot and not the down-ballot races. Republican congressional candidates were surprisingly successful in those same states where allegations of illegality in the presidential race have been made.
WaPo:
President Trump has abandoned his plan to win reelection by disqualifying enough ballots to reverse President-elect Joe Biden’s wins in key battleground states, pivoting instead to a goal that appears equally unattainable: delaying a final count long enough to cast doubt on Biden’s decisive victory.
On Wednesday, Trump’s campaign wired $3 million to election officials in Wisconsin to start a recount in the state’s two largest counties. His personal lawyer, Rudolph W. Giuliani, who has taken over the president’s legal team, asked a federal judge to consider ordering the Republican-controlled legislature in Pennsylvania to select the state’s electors. And Trump egged on a group of GOP lawmakers in Michigan who are pushing for an audit of the vote there before it is certified.
Giuliani has also told Trump and associates that his ambition is to pressure GOP lawmakers and officials across the political map to stall the vote certification in an effort to have Republican lawmakers pick electors and disrupt the electoral college when it convenes next month — and Trump is encouraging of that plan, according to two senior Republicans who have conferred with Giuliani and spoke on the condition of anonymity to discuss the matter candidly.
But that outcome appears impossible. It is against the law in Pennsylvania, Wisconsin law gives no role to the legislature in choosing presidential electors, and there is little public will in other states to pursue such a path.’
Behind the thin legal gambit is what several Trump advisers say is his real goal: sowing doubt in Biden’s victory with the president’s most ardent supporters and keeping alive his prospects for another presidential run in 2024.
The shift in strategy comes after the president has suffered defeat after defeat in courtrooms around the country. And it serves as a tacit acknowledgment that Trump has failed to muster evidence to support his unfounded claims about widespread fraud.
Getting nowhere in the courts, President Donald Trump’s scattershot effort to overturn President-elect Joe Biden’s victory is shifting toward obscure election boards that certify the vote as Trump and his allies seek to upend the electoral process, sow chaos and perpetuate unsubstantiated doubts about the count.
The battle is centered in the battleground states that sealed Biden’s win.
In Michigan, two Republican election officials in the state’s largest county initially refused to certify results despite no evidence of fraud, then backtracked and voted to certify and then on Wednesday flipped again and said they “remain opposed to certification.” Some Republicans have called on the GOP statewide canvassers to so the same. In Arizona, officials are balking at signing off on vote tallies in a rural county.
The moves don’t reflect a coordinated effort across the battleground states that broke for Biden, local election officials said. Instead, they seem to be inspired by Trump’s incendiary rhetoric about baseless fraud and driven by Republican acquiescence to broadsides against the nation’s electoral system as state and federal courts push aside legal challenges filed by Trump and his allies.
Still, what happened in Wayne County, Michigan, on Tuesday and Wednesday was a jarring reminder of the disruptions that can still be caused as the nation works through the process of affirming the outcome of the Nov. 3 election.
There is no precedent for the Trump team’s widespread effort to delay or undermine certification, according to University of Kentucky law professor Joshua Douglas.
“It would be the end of democracy as we know it,” Douglas said. “This is just not a thing that can happen.”….
In Wayne County, the two Republican canvassers at first balked at certifying the vote, winning praise from Trump, and then reversed course after widespread condemnation. A person familiar with the matter said Trump reached out to the canvassers, Monica Palmer and William Hartmann, on Tuesday evening after the revised vote to express gratitude for their support. Then, on Wednesday, Palmer and Hartmann signed affidavits saying they believe the county vote “should not be certified.”
WaPo:
After three hours of tense deadlock on Tuesday, the two Republicans on an election board in Michigan’s most populous county reversed course and voted to certify the results of the Nov. 3 election, a key step toward finalizing President-elect Joe Biden’s victory in the state.
Now, they both want to take back their votes.
In affidavits signed Wednesday evening, the two GOP members of the four-member Wayne County Board of Canvassers allege they were improperly pressured into certifying the election and accused Democrats of reneging on a promise to audit votes in Detroit.
“I rescind my prior vote,” Monica Palmer, the board’s chairwoman, wrote in an affidavit reviewed by The Washington Post. “I fully believe the Wayne County vote should not be certified.”
William Hartmann, the other Republican on the board, has signed a similar affidavit, according a person familiar with the document. Hartmann did not respond to a message from The Post.
Jonathan Kinloch, a Democrat and the board’s vice chairman, told The Post it’s too late for the pair to reverse course, as the certified results have been sent to the secretary of state in accordance with state rules. He lashed out at the Republicans over their requests.
“Do they understand how they are making us look as a body?” he said. “We have such an amazing and important role in the democratic process, and they’re turning it on its head.”
I am not an expert on Michigan law. I suspect that it would take a court order to rescind a certification, and in any case if the results were not certified on the county level, the state has the power to certify the results. We will see if this plays out on the state level as well.
This is very dangerous for our democracy, as it is an attempt to thwart the will of the voters through political pressure from the President. Even though it is extremely unlikely to work, it is profoundly antidemocratic and a violation of the rule of law. It’s inexcuasable.
Josh Gerstein for Politico:
President Donald Trump’s campaign has filed yet another version of its lawsuit over the election results in Pennsylvania, now contending that he should be named the victor in the presidential contest there or that the state legislature be given the authority to assign the state’s 20 electoral votes.
The third iteration of the suit also restores legal claims dropped in the second version that the campaign’s constitutional rights were violated because of allegedly inadequate access for observers during the processing of mail-in ballots.
The new complaint claims 1.5 million mail-in or absentee votes in seven Pennsylvania counties “should not have been counted” and that the disputed votes resulted “in returns indicating Biden won Pennsylvania.”
The new pleading also continues to pursue an unusual tack for Republicans: invoking international standards to assess the legitimacy of U.S. election procedures. Trump campaign lawyers also leveled bitter criticism at a Pennsylvania Supreme Court decision Tuesday that found, by a vote of 5-2, that access for election observers was adequate even if they could not see the details of individual ballots.
President Trump’s false accusations that voter fraud denied him re-election are causing escalating confrontations in swing states across the country, leading to threats of violence against officials in both parties and subverting even the most routine steps in the electoral process.
In Arizona on Wednesday, the Democratic secretary of state, Katie Hobbs, issued a statement lamenting the “consistent and systematic undermining of trust” in the elections and called on Republican officials to stop “perpetuating misinformation.” She described threats against her and her family in the aftermath of Joseph R. Biden Jr.’s victory over Mr. Trump in her state.
In Georgia, where Mr. Biden holds a narrow lead that is expected to stand through a recount concluding Wednesday night, Secretary of State Brad Raffensperger, a Republican, has said he, too, received menacing messages. He also said he felt pressured by Senator Lindsey Graham, a close Trump ally and the chairman of the Senate Judiciary Committee, to search for ways to disqualify votes.
In Pennsylvania, statehouse Republicans on Wednesday advanced a proposal to audit the state’s election results that cited “a litany of inconsistencies” — a move Democrats described as obstructionist and unnecessary given Mr. Trump’s failure to present any evidence in court of widespread fraud or other problems. Republicans in Wisconsin filed new lawsuits on Wednesday in the state’s two biggest counties, seeking a recount. Mr. Biden reclaimed both states after Mr. Trump won them in 2016….
About half of all Republicans believe President Donald Trump “rightfully won” the U.S. election but that it was stolen from him by widespread voter fraud that favored Democratic President-elect Joe Biden, according to a new Reuters/Ipsos opinion poll.
The Nov. 13-17 opinion poll showed that Trump’s open defiance of Biden’s victory in both the popular vote and Electoral College appears to be affecting the public’s confidence in American democracy, especially among Republicans.
Altogether, 73% of those polled agreed that Biden won the election while 5% thought Trump won. But when asked specifically whether Biden had “rightfully won,” Republicans showed they were suspicious about how Biden’s victory was obtained.
Fifty-two percent of Republicans said that Trump “rightfully won,” while only 29% said that Biden had rightfully won.
Tom Donohue — CEO of the U.S. Chamber of Commerce, and longtime confidant of Republican presidents — tells Axios that Joe Biden is president-elect, and President Trump “should not delay the transition a moment longer.”…
Business leaders are speaking with one voice:
- National Association of Manufacturers president and CEO Jay Timmons, and other NAM leaders, said the GSA should sign the letter opening transition resources to Biden: “Further, we call on the Trump administration to work cooperatively with President-elect Biden and his team.”
- JPMorgan Chase chairman and CEO Jamie Dimon told Andrew Ross Sorkin at the N.Y. Times’ Dealbook conference: “We need a peaceful transition. We had an election. We have a new president. You should support that whether you like it or not because it’s based on a system of faith and trust.”
- The Business Roundtable, representing top CEOs, on Nov. 7 congratulated “President-elect Biden, Vice President-elect Harris.”
President Trump’s frantic post-election challenges are having the opposite effect of what he intended: He’s documenting his demise through a series of court fights and recounts showing Joe Biden’s victory to be all the more obvious and unassailable.
Why it matters: The president’s push to overturn the election results is dispelling the cloud of corruption he alleged by forcing states to create a verified — and legally binding — accounting of his election loss.
- “Each loss further cements Biden’s win,” says election law expert Richard Hasen.
- “History shows that any leader who constructs a major myth, that is later shown to be false, will eventually fall,” says Harvard science historian and “Merchants of Doubt” author Naomi Oreskes. “The risk is that he takes his country down with him.”
Zach Montellaro for Politico.
The 2020 ABA Conference on Administrative Law started today. Lots of great panels and speakers. I’m on a panel this Thursday at 1.00 pm with the title above. Here’s the lineup —
Speakers
• Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, George Washington University School of Law, Washington, DC
• Anne Joseph O’Connell, Adelbert H. Sweet Professor of Law, Stanford University School of Law, Stanford, CA
• William A. Galston, Ezra K. Zilkha Chair, Governance Studies, The Brookings Institution, Washington, DC
• Richard H. Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law, New York, NY
Moderator
• Daniel M. Flores, is Senior Counsel–Republican, House Committee on Oversight and Reform. Washington, DC
NJ:
U.S. Sen. Pat Toomey on Wednesday put some distance between himself and President Donald Trump’s efforts to throw out hundreds of thousands of votes cast in Philadelphia and Pittsburgh, trying to flip a state carried by Joe Biden.
Asked at the U.S. Capitol about the legal arguments by Trump lawyer Rudy Giuliani, Toomey, R-Pa, said simply: “Let me just say, I don’t think they have a strong case.”
The suit before U.S. District Judge Matthew W. Brann seeks to invalidate around 700,000 votes on the grounds that Republican poll watchers could not watch them being counted. But the Trump campaign earlier dropped those charges from its court case.
From Jonathan Rauch:
Unfortunately, a more sinister interpretation better fits the facts. What Trump and his supporters are up to should be thought of not as a litigation campaign that is likely to fail, but as an information-warfare campaign that is likely to succeed—and, indeed, is succeeding already. More specifically, they are employing a tactic called “the firehose of falsehood.” This information-warfare technique, according to researchers at the RAND Corporation, is marked by “high numbers of channels and messages and a shameless willingness to disseminate partial truths or outright fictions.”…
Unlike more traditional forms of propaganda, the firehose of falsehood does not aim primarily at persuading the public of something that is false (although this is a welcome result). Rather, it floods the information environment with so many lies, half-truths and theories that the public becomes disoriented, confused and distrustful of everyone.
While the bulk of firehose claims are false or misleading, even mutually contradictory, a skilled propagandist may salt the mix with statements that are partly valid, lending apparent plausibility to the rest. The bewildering panoply of true and false, rumor and conspiracy, lawsuits and countersuits, all work toward the main objectives: to undermine legitimate authorities, polarize and fracture society, and open the door to cynicism and demagoguery.
Trump has often been dismissed as a would-be authoritarian whose saving grace is his incompetence. That may be true in some respects, but at disinformation he is ambitious and skilled. As of Election Day, he had made around 25,000 false and misleading claims. Amid the hailstorm of confusion and contradiction, it was little wonder that Sen. John Kennedy (R-Louisiana) parroted Kremlin disinformation about whether Russian operatives had hacked and released Democratic emails before the 2016 election. “I don’t know, nor do you, nor do any of us,” he said.
I don’t know, nor do you, nor do any of us: That is the outcome Trump and his minions are playing for. Their latest campaign is the most audacious. It began months ago, with Trump’s drumbeat of false attacks on mail voting, quickly echoed by conservative media. That narrative of impending fraud set up the current campaign. Whereas most ordinary Americans view the courts, politics and the media as separate spheres, Trump understands them all as information battlegrounds—avenues of influence to the central goal of casting doubt.
Trump’s strategy is sophisticated, even if his style is not. As a profligate and frequently unsuccessful litigant, he almost certainly knows that his lawsuits will not reverse the election. To succeed, however, he must merely reach two attainable goals: convince Republicans that the election was not free and fair (as 70 percent of them already believe, according to a recent Politico/Morning Consult poll); and convince much of the rest of the public that the election result is in doubt, and can never be known for sure. Those outcomes will frustrate and distract Democrats, outrage and mobilize Republicans, and—most important from Trump’s point of view—position him to remain agitator-in-chief after he leaves office.
In light of the post-election debates raging in the Democratic Party between moderates and progressives over how to position the party for future elections, I thought it was worth re-upping this Washington Post essay that Jonathan Rodden and I wrote in the run-up to the 2018 midterms. The issues remain the same:
Democrats have engaged in a passionate debate leading into the midterms on Nov 6. “Progressives” argue that the path to victory this year and beyond lies in motivating their youthful urban base by moving the party to the left. “Pragmatic” centrists, on the other hand, argue that victory requires ideological moderation that will attract independents.
Paradoxically, both sides might be right, which is why this tension is unavoidable and likely to endure. To understand this, we must grasp how electoral geography shapes politics. President Trump won 230 congressional districts to Hillary Clinton’s 205, even though she outpolled him by more than 3 million votes nationwide. This reflects, in part, the fact that progressive voters are increasingly concentrated in the areas that make up urban congressional and state legislative districts, while moderates and conservatives are more evenly dispersed in exurban and rural districts.
Democrats have engaged in a passionate debate leading into the midterms on Nov 6. “Progressives” argue that the path to victory this year and beyond lies in motivating their youthful urban base by moving the party to the left. “Pragmatic” centrists, on the other hand, argue that victory requires ideological moderation that will attract independents.
Paradoxically, both sides might be right, which is why this tension is unavoidable and likely to endure. To understand this, we must grasp how electoral geography shapes politics. President Trump won 230 congressional districts to Hillary Clinton’s 205, even though she outpolled him by more than 3 million votes nationwide. This reflects, in part, the fact that progressive voters are increasingly concentrated in the areas that make up urban congressional and state legislative districts, while moderates and conservatives are more evenly dispersed in exurban and rural districts….
To win control of Congress and state legislatures, Democrats mustcapture relatively conservative districts that support Republicans in presidential elections. Structurally, this is nothing new. Democrats have been relatively concentrated in urban districts since the New Deal, and for decades, their geography made it necessary for them to field congressional candidates who could win on “Republican” turf in the suburbs and countryside..
Whatever the outcome this fall, the Democrats’ basic geography problem is likely to endure. To maintain control of the House or state legislatures beyond the isolated wave election, self-styled exurban and rural Democrats will feel the pressure to craft local brands that distance themselves from their party’s liberal reputation, even if that reputation serves the party well in winning the national or statewide popular vote.
Political geography — not just ideological conflict on its own — thus makes it likely that tensions between the progressive and centrist wings of the Democratic Party will endure.
Lachlan Markay for the Daily Beast:
The good news is that the nation’s top campaign finance watchdog may soon be functional again. The bad news is that its current chairman has gone off the rails.
Trey Trainor may not be a household name. But as head of the Federal Election Commission, he has oversight of the campaign finance system that underpins federal elections. And in recent days, he’s been floating baseless election fraud conspiracy theories sourced entirely to a Trump attorney who believes the Fed is out to tank the American economy in order to enrich George Soros.
“I do believe that there is voter fraud taking place” in key states in the 2020 presidential election, Trainor told the conservative outlet Newsmax last week. The allegations were quickly seized upon by the president’s allies, including his son Donald Trump Jr., in their efforts to overturn the results of an election that experts both in and out of the federal government have said was remarkably secure and reliable.
Such proclamations carry a bit of extra weight when coming from the chair of the FEC. But Trainor’s sole source for it appears to be the word of Sidney Powell, a right-wing attorney who’s representing the Trump campaign in its efforts to block the certification of President-elect Joe Biden’s election victory.
“If she says there is rampant voter fraud… I believe her,” Trainor wrote of Powell, who has alleged that U.S. monetary policy is in hock to Soros and amplified“QAnon” conspiracy theorists.
Campaign finance experts recoiled at Trainor’s apparent embrace of the dubious allegations. “My biggest concern with Commissioner Trainor is his partisanship, and to the extent that overlaps with the conspiracy theorizing about election fraud, that’s a concern,” said Paul Seamus Ryan, the vice president of litigation with the group Common Cause, in an interview on Tuesday.
But the comments were just the latest in a recent shift at the FEC, spearheaded by both Republican and Democratic commissioners, to expand its role to some degree beyond the commission’s traditional campaign finance enforcement mandate. Fueled by concerns over foreign election interference in 2016 and spurious voter fraud charges this year, the nation’s chief political money enforcer appears to be eyeing an expanded policy purview, even as the commission he served on has been prevented by internal dysfunction and a critical staff shortage from carrying out its most basic functions.
President Trump’s campaign said it would request a recount of votes in Wisconsin’s two largest and most Democratic counties, the latest effort to reverse the result of an election Mr. Trump lost to President-elect Joseph R. Biden Jr.
The Trump campaign said it would file a petition with the Wisconsin Elections Commission to recount results in Milwaukee County and Dane County, which includes Madison and the flagship campus of the University of Wisconsin. The commission on Wednesday morning said in a tweet that it had received a $3 million wire transfer from the campaign but no petition.
State law requires a recount petition to be filed by 6 p.m. Eastern time Wednesday to prompt a recount.
The commission on Monday said it would cost $7.9 million to conduct a statewide recount of the presidential contest, which Mr. Biden won by 20,608 votes out of 3.2 million cast. The estimate for recounting the race in Milwaukee County was $2.04 million, and $740,808 for Dane County.
A statewide recount following the 2016 election added 131 votes to Mr. Trump’s margin of victory over Hillary Clinton.
NYT:
Mayor Mike Duggan on Wednesday accused President Trump’s allies in Michigan’s most populous county of racism after they threatened to block certification of the election over slight discrepancies in majority-Black precincts — while ignoring similar problems in heavily white areas.
On Tuesday night, Republican election board members in Wayne County, which contains Detroit and its inner suburbs, refused to certify the county’s election results in a nakedly partisan effort to hold up President-elect Joseph R. Biden Jr.’s victory over Mr. Trump — only to reverse themselves after outcry from state officials and Detroit residents who accused them of trying to steal their votes and criticized the move as racist.
“You could see the racism in the behavior last night,” Mr. Duggan said at a news conference Wednesday. “American democracy cracked last night, but it didn’t break. But we are seeing a real threat to everything we believe in.”
Rev. Wendell Anthony, the head of Detroit’s NAACP chapter, said the Trump campaign’s attempts to discredit the election in cities with large Black populations like Detroit, Philadelphia and Atlanta is part of a racist pattern intended to stoke divisions and undermine core democratic institutions.