Georgia’s two U.S. senators called on the state’s top elections official, a fellow Republican, to resign on Monday in a shocking attempt to appease President Donald Trump and his supporters ahead of consequential Jan. 5 runoffs.
U.S. Sens. Kelly Loeffler and David Perdue provided no evidence to back up claims of unspecified “failures” with the November election, overseen by Secretary of State Brad Raffensperger, echoing other Trump supporters who falsely claim widespread fraud contributed to his defeat.
The two were attempting to energize conservatives upset over Trump’s loss to President-elect Joe Biden, who is on the cusp of becoming the first Democrat to flip Georgia for the first time since 1992. Biden led Trump by over 11,500 votes on Monday afternoon.
Raffensperger said he’s not going to resign and will continue to ensure that the election is fair.
“My job is to follow Georgia law and see to it that all legal votes, and no illegal votes, are counted properly and accurately,” Raffensperger said. “As secretary of state, that is my duty, and I will continue to do my duty. As a Republican, I am concerned about Republicans keeping the U.S. Senate. I recommend that Senators Loeffler and Perdue start focusing on that.”
Their letter came just hours after the secretary of state’s office on Monday debunked several conspiracy theories about missing or mishandled ballots.
State election officials said claims that military ballots went missing are false, as are claims that ballots were dumped in Spalding County. Also false are allegations that ballots were harvested or results are inaccurate. The lone elections lawsuit filed in Georgia, involving ballot handling in Chatham County, was quickly dismissed last week.
Here was my explanation yesterday for why this matters.
In the ordinary course of things, the Trump campaign would evaluate and almost certainly fold any litigation attempts quickly once it was clear they cannot change the result. But we are not in the ordinary course of things.
The following is a symposium submission from Franita Tolson (USC):
On Tuesday, after weeks of early voting, north of 145 million Americans will have cast ballots in this year’s election, the highest turnout in any presidential election in history. With the flurry of lawsuits in just the last few days, this election cycle also promises to be the most litigated in this country’s history. Two days before the election, I voiced concerns that, once a president emerges from our flawed process, we will learn to live with our dysfunction rather than working to improve the system so that it works for everyone. Two days after, I worried that the postmortem of the election would ignore those who were unable to cast a ballot this year because the problem of voter suppression would get lost in the narrative of historic turnout.
Once the dust settles, it is unlikely that the lawsuits alleging irregularities in a number of states will amount to much. These cases are a Hail Mary pass by a president desperate to keep his job. But let us not lose sight of the fact that this process is not about one person or one office. We go through all of this drama so that “We the People” can have had a role in selecting their leaders. Our democracy is majoritarian; our leaders serve at the pleasure of the people. More than seventy-four million people voted for the winner of this year’s presidential election, yet we sat transfixed for four days because of the narrow margin in a handful of states that would determine if the popular vote winner carried the Electoral College. Four days. Like many of you, I am tired and annoyed because this is a silly way to elect a president. It’s dumb, folks. I know that it will take a lot of political will to change our status quo, but in the meantime, there are other problems we can address.
Here is my plea. Regardless of how we choose our president (and we definitely need to work on that), the baseline of our system of elections should be the voter. Not just any voter, but:
-the people who requested an absentee ballot in the Wisconsin primary but never received one;
-the people who waited in line for 8 hours in Gwinnett County, GA to cast a ballot during early voting;
-the people who mailed in their ballots weeks in advance to give the Post Office time to deliver it (and literally had no assurances that the ballot would be delivered);
-the disabled voter who used a drive thru voting location to cast a ballot (only to worry later that the ballot might be invalidated by court order);
-the Harris County, Texas voter who thought that they could put their ballot in the drop box close to home (before the Governor limited the county, which is the size of Rhode Island, to one drop box)
-the voter who lives more than 10 miles from the nearest state ID issuing office and does not have transportation to get the identification so they can vote
-the individual with a felony conviction who could not find out the amount of the fines and fees that needed to be paid so that they could register to vote in time for this year’s election
-the voter in Michigan who had hoped to get a ride to the polls only to find that the ban on such rides had been reinstated by court order
-the Indiana voter who was old enough to vote but not old enough to vote absentee
Let’s not focus on the more than 145 million people who successfully cast a ballot, but the countless number who tried to vote and failed during both the primaries and general election. Sadly, the courts have rarely focused on the burdens these needless regulations impose on voters, instead prioritizing the power of the states to impose these burdens. According to the Supreme Court, this authority is plentiful.
Yet why should the states have a prerogative to disenfranchise that we, the voters, are bound to respect? States should have obligations to make voting easier, not harder. Every restriction should be justified, the rights of every voter respected. Having a voter-centered democracy is not about making it difficult for states to run an election system. It is about avoiding regulations that make it hard to vote for partisan gain in a system that is supposed to be about the voters, not the states.
However, if I am wrong that our system is voter-centered—and recent events suggest that is certainly possible—then we need to call ourselves something other than a democracy. Don’t lull people into thinking we are the greatest democracy in the world if we are failing along many of the metrics that would identify this country as such. America should not be able to claim the mantle of democracy while prioritizing the state over its citizens, nor does high turnout insulate America from criticism. We had record turnout in 2020 because many citizens decided that artificial barriers would not deter them from voting, not because voting is as easy and accessible as it could be. Voting should be easier in a democracy, and certainly easier in a global pandemic.
As we entertain the ongoing lawsuits challenging the election results—some of which are centered in questions about the scope of the state’s authority over elections—we ignore at our peril the question that may well determine the political future of this country: are we a democracy or not? If the answer to this question is yes, then we need to focus on the voters.
The following is a symposium contribution from Michael Morley (FSU):
Our experience with the 2020 presidential election confirms that a sound electoral system rests on three equally important pillars. First, most fundamentally, all eligible voters must have a reasonable opportunity to cast a ballot safely and without substantial burden. The point of an election is to ascertain the will of the people. It cannot serve that basic function if some portion of the electorate is effectively excluded from participation. More broadly, as I’ve repeatedly emphasized throughout the COVID pandemic, an electoral system must offer a range of distinct avenues for voting to be sufficiently robust to withstand a range of election emergencies, such as natural disasters, pandemics, terrorist attacks, power grid failures, and the like. The more mechanisms for voting that a state allows, the less susceptible to any particular systemic risk the overall system becomes.
Moreover, election officials need flexibility to modify particular rules governing the electoral process to mitigate the impact of threats to the electoral system, so they can keep avenues for voting available despite outside threats. This flexibility can come from either the general election code itself or election emergency laws. The modifications that election officials made to in-person voting during the 2020 election, for example, in terms of both the types of polling locations to use, social distancing requirements, and the availability of personal protective equipment, allowed robust in-person voting to occur despite the serious threat of COVID.
Second, just as importantly, the system must be designed to minimize the potential for mistakes, accidents, irregularities, and even fraud. Perhaps one of the most unfortunate aspects of modern political debates over elections is that concerns about systemic integrity have become politicized, with exaggerated claims of fraud often being wielded as a cudgel to reduce voting opportunities. Historically, the desire to ensure accurate results, avoid irregularities, and prevent fraud has been bipartisan. One of the main reasons we have a single, nationwide Election Day for federal elections, for example, was due to widespread congressional recognition of “pipelaying” and “colonizing”: political parties brought people from one state to another to vote in multiple states’ presidential or congressional elections, because they occurred on different days. Many Reconstruction Era laws enacted with the unquestioned purpose of protecting the right to vote for African Americans in southern states contained strict prohibitions on voter and election fraud. Indeed, ballot-box stuffing was among the tools white supremacists used to disenfranchise black voters. Even the Voting Rights Act itself—perhaps the single most important statute protecting the right to vote—bolstered its critical antidiscrimination provisions with strong election integrity safeguards. Adequate protections for the electoral process can undermine attempts to impeach the results of an election afterwards through baseless, vague, generalized claims about potential misconduct that might have occurred.
Third, finally, the system must appear legitimate to the general public. In Buckley v. Valeo, the U.S. Supreme Court famously recognized that the Government has a compelling interest in preventing not only actual corruption, but the appearance of corruption, as well. Having a fair, accurate, and inclusive electoral process is crucial. In many ways, however, it is just as important that the public recognize the process to be fair, accurate, and inclusive. This is where transparency is key. To borrow another concept from campaign finance law, Justice Brandeis famously said, “Sunlight is the best disinfectant.” In a bitterly contested election, election officials must assure that as much of the process as possible is subject to meaningful public scrutiny and observation. Several post-election lawsuits were filed in this election cycle, for example, over whether campaign observers were seated closely enough to be able to monitor the processing of absentee ballots. Election officials should not regard observers from campaigns and the press as unwelcome interlopers to be tolerated, but rather as essential partners in the process who can give the public assurance that nothing untoward occurred. Just as importantly, such observers can provide outside, independent sets of eyes to identify potential mistakes or oversights.
There will be some situations where these three goals—expanding voting opportunities, ensuring accurate results, and bolstering public legitimacy—may be in tension with each other. And reasonable people may disagree over which of these goals should take priority in such cases. As we continue to reform the electoral process for future elections, we should focus primarily on win-win changes that bolster all of these goals simultaneously to the greatest degree possible.
n its search for viable challenges to President-elect Joe Biden’s victory, President Trump’s campaign set up a voter fraud hotline after Election Day, encouraging people to call in with reports of suspicious incidents.Follow the latest on Election 2020
“Help stop voter suppression, irregularities and fraud,” the campaign said in social media posts promoting the hotline. “Tell us what you are seeing.”
Although the campaign has thus far failed to prove any voter fraud, the hotline has received no shortage of phone calls — all thanks to a viral campaign on TikTok and Twitter to clog the hotline with anti-Trump memes and absurd messages.
Campaign staffers in Virginia have been answering the calls, ABC News reported, fielding prank calls from Biden supporters who have played songs and movie clips, filed bogus reports, submitted the entire script for the 2007 film “Bee Movie,” or simply mocked Trump’s loss before hanging up.
Some people played rapper YG’s vulgar, anti-Trump rap, “FDT,” which rose up the charts as people celebrated Biden’s win. One woman said she met the devil at her Georgia polling place and he challenged her to a fiddle contest, but if she lost, Biden would win. Sportswriter Jeff Pearlman simply recounted the elaborate plot of the sitcom “Diff’rent Strokes.”
The Trump campaign did not immediately respond to a request for comment late Sunday. But some of the president’s allies, including son Eric Trump, responded to the reports of spam calls by blaming Democrats.
The first person Rudy Giuliani, the attorney for President Donald Trump, called up as a witness to baseless allegations of vote counting shenanigans in Philadelphia during a press conference last week is a sex offender who for years has been a perennial candidate in New Jersey.
“It’s such a shame. This is a democracy,” Daryl Brooks, who said he was a GOP poll watcher, said at the press conference, held at Four Seasons Total Landscaping in Northeast Philadelphia. “They did not allow us to see anything. Was it corrupt or not? But give us an opportunity as poll watchers to view all the documents — all of the ballots.”
Trenton political insiders watched with bemusement as Brooks took the podium.
Brooks was incarcerated in the 1990s on charges of sexual assault, lewdness and endangering the welfare of a minor for exposing himself to two girls ages 7 and 11, according to news accounts.
Brooks has run for various offices, including U.S. Senate and the House of Representatives.
POLITICO left a message at a number for Brooks listed online. Brooks said at the press conference that he’s from Philadelphia. POLITICO could not immediately ascertain if and when he moved there.
President-elect Joseph R. Biden Jr. prepared on Sunday to start building his administration, even as Republican leaders and scores of party lawmakers refrained from acknowledging his victory out of apparent deference to President Trump, who continued to refuse to concede.
With Mr. Biden out of the public eye as he received congratulations from leaders around the world, his team turned its attention to a transition that will swing into action on Monday, with the launch of a coronavirus task force and swift moves to begin assembling his team.
But more than 24 hours after his election had been declared, the vast majority of Republicans declined to offer the customary statements of good will for the victor that have been standard after American presidential contests, as Mr. Trump defied the results and vowed to forge ahead with long-shot lawsuits to try to overturn them.
While some prominent Republican figures, including the party’s only living former president, George W. Bush, called Mr. Biden to wish him well, most elected officials stayed silent in the face of Mr. Trump’s baseless claims that the election was stolen from him….
But Republicans’ silence suggested that even in defeat, Mr. Trump maintained a powerful grip on his party and its elected leaders, who have spent four years tightly embracing him or quietly working to avoid offending him or his loyal base. For many prominent Republicans, the president’s reluctance to accept the election results created a dilemma, making even the most cursory expression of support for Mr. Biden seem like a conspicuous break with Mr. Trump.
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This is not a surprise at all and I was always mystified by anyone who thought this Court would agree to hear a campaign finance case to make things more regulatory. The trend is decidedly in the opposite direction.
What will the legal landscape look like one week after Election Day? Predictions about election results vary from a peaceful count to disputed electors, protracted litigation, Congressional turmoil, and Supreme Court involvement. Existing laws, such as the Presidential Succession Act, the Electoral Count Act, and the 12th Amendment, leave room for interpretation about proper procedures. Distinguished experts in election law and constitutional law will examine the post-election landscape, the laws, the gaps, and the options we may face on Nov. 10 and thereafter. Likely questions include: What happens if a candidate for president or vice president becomes seriously ill before the election is resolved or before inauguration? When must states finalize counting ballots? Are all states applying “winner take all” rules to their electors? Can states enforce electors’ pledges to vote for the winner of the popular vote? Can states appoint different electors to vote for the loser of the popular vote? What happens if a state’s election results remain in dispute by the Dec. 8 deadline for certifying electors? What happens if competing slates of electors claim legitimacy in the Electoral College? Can the Senate President choose which elector slate to accept? What happens if there is no undisputed winner?
Speakers include:
Julie Fernandes – Associate Director for Institutional Accountability and Individual Liberty, Rockefeller Family Fund
Richard L. Hasen – Chancellor’s Professor of Law and Political Science, University of California, Irvine School of Law
Justin Levitt – Professor of Law and Gerald T. McLaughlin Fellow, Loyola Law School
Myrna Pérez – Director of Voting Rights & Elections, Democracy, Brennan Center for JusticeTime
Nov 10, 2020 02:00 PM in Eastern Time (US and Canada)
As top Republicans remained divided Sunday over congratulating President-elect Joseph R. Biden Jr. and declaring the election over, President Trump’s closest advisers continue to brief him on possible “legal remedies,” according to a White House official.
That path has been encouraged most strongly by Rudolph W. Giuliani, Mr. Trump’s personal lawyer, while most other Trump advisers have said privately that the chances of changing the results of the election through various court challenges are exceedingly slim.
Mr. Trump’s campaign announced on Sunday that Representative Doug Collins of Georgia will lead its recount team in the state, where the effort will begin as soon as the canvassing of ballots has concluded.
Some within the Republican Party have made it clear that it was time for the president to concede. On Sunday, former President George W. Bush became the highest-profile Republican to publicly declare the election over in defiance of Mr. Trump’s refusal to accept the results.
“I extended my warm congratulations” to Mr. Biden “and thanked him for the patriotic message he delivered last night,” Mr. Bush said in a statement released after he spoke with Mr. Biden by telephone. “I also called Kamala Harris to congratulate her on her historic election to the vice presidency. Though we have political differences, I know Joe Biden to be a good man who has won his opportunity to lead and unify our country.”
Although Mr. Bush said Mr. Trump had “the right to request recounts and pursue legal challenges,” his statement made clear that he did not think those efforts would succeed. Mr. Bush’s position could encourage other Republicans to speak out and increase pressure on Mr. Trump to stop fighting the results with unsubstantiated claims….
Republican leaders like Senator Mitch McConnell of Kentucky have refused to publicly acknowledge Mr. Biden’s victory without necessarily embracing Mr. Trump’s wild claims. Many of them have either remained silent or have straddled the line with statements calling for all legal votes to be counted, suggesting that the president should be permitted to file any lawsuits or call for any recounts allowed under the law.
Only a few well-known Republicans, like Senators Mitt Romney of Utah and Lisa Murkowski of Alaska, have congratulated Mr. Biden.
Republicans have made claims of election irregularities in five states where President-elect Joe Biden leads in the vote count, alleging in lawsuits and public statements that election officials did not follow proper procedures while counting ballots in Tuesday’s election.
So far, they have gone 0 for 5.
Since Election Day, President Trump has repeatedly claimed that a broad conspiracy of misdeeds — apparently committed in both Republican and Democratic states — had cost him the election.
“I WON THE ELECTION, GOT 71,000,000 LEGAL VOTES,” Trump tweeted on Saturday, after returning to the White House from his Virginia golf course. “BAD THINGS HAPPENED WHICH OUR OBSERVERS WERE NOT ALLOWED TO SEE.” Trump’s campaign has encouraged donors to contribute to a legal-defense fund so he can fight the cases in court.
But in the lawsuits themselves, even Trump’s campaign and allies do not allege widespread fraud or an election-changing conspiracy.
Instead, GOP groups have largely focused on smaller-bore complaints in an effort to delay the counting of ballots or claims that would affect a small fraction of votes, at best.
And, even then, they have largely lost in court.
The reason: Judges have said the Republicans did not provide evidence to back up their assertions — just speculation, rumors or hearsay. Or in one case, hearsay written on a sticky note.
The result has been a flurry of filings that Trump has cited as a reason to avoid conceding defeat — but, so far, have done nothing to prevent the defeat itself.
President Donald Trump’s campaign is planning a messaging blitz to fuel its argument — unsupported by any evidence to date — that the President’s second term is being stolen from him through corrupt vote counts in battleground states, three sources familiar with the matter told CNN.
One of the ways it plans to do that is presenting obituaries of people the campaign will claim voted in the election and considering having campaign-style rallies to amplify the message, according to two of the sources.
So far, the litigation put forward by the campaign has not included any proof to support allegations of widespread fraud. And nothing campaign officials have put forward would change the outcome in any state.
But the President is being urged by his son-in-law and senior adviser Jared Kushner, attorney Rudy Giuliani and campaign adviser Jason Miller to hold rallies throughout the US pushing for recounts of votes, sources close to Trump told Jake Tapper. Kushner did not offer a comment on this story. Miller denied the story in a tweet. CNN has reached out to Giuliani for comment.
The following is a symposium contribution from Nick Stephanapoulos (Harvard):
The following are a number of tentative thoughts about what the 2020 election means for redistricting—for both the plans currently in effect and the ones soon to be enacted.
1. At the moment, it appears that Democrats will win the House popular vote by 2-3 percentage points along with 225 or so seats. If that’s right, the 2020 House election will exhibit an impressive level of partisan fairness—an efficiency gap of less than 1 percent, to pick one common metric. This would be a substantial improvement over recent elections, when the House was significantly biased in a Republican direction. Even in 2018, the House as a whole had a pro-Republican efficiency gap of around 4 percent, since Democrats didn’t win as many seats as one would expect given their overwhelming popular vote margin (around 8 points). Before Tuesday, many observers would have thought that a Democratic popular vote advantage of only 2-3 points would lead to Republican control of the House.
2. The House’s diminished partisan bias probably has three explanations. One is the redrawing of certain plans (North Carolina and Pennsylvania) that had been exceptionally skewed in a Republican direction. These gerrymanders’ replacement with fairer maps helped make the House as a whole more balanced. Second, even under today’s polarized conditions, House incumbents enjoy a modest edge (around 2-3 points). This power of incumbency (while far from what it used to be) may have saved some Democrats swept into office in 2018, enabling them to eke out narrow wins in a much less favorable environment. Third, and most interestingly, the non-uniform vote shifts between 2016 and 2020 may have improved Democrats’ geographic position. Some of the most heavily Democratic areas (urban cores and black and Latino neighborhoods) swung in a Republican direction, thereby unpacking Democrats to some degree. At the same time, exurban and rural areas remained as red as in 2016 (or even redder), thereby packing many Republicans. And suburbs, home to a plurality of American voters, moved substantially toward the Democrats, benefiting them in the country’s biggest political battleground. This shows how simplistic the narrative is of a “natural” Republican redistricting advantage. Even modest vote shifts can negate much of this supposed edge.
3. Democrats are gnashing their teeth over their failure to flip legislative chambers in Arizona, Michigan, North Carolina, Pennsylvania, and Texas (among others). This failure, though, is unlikely to have severe redistricting consequences. Arizona and Michigan have independent redistricting commissions, so control of the political branches is irrelevant to the plans that are eventually enacted. North Carolina and Pennsylvania have state courts that have recently demonstrated their ability to police gerrymandering under state constitutional provisions. And as for Texas (and other states where political actors draw district lines without serious judicial limits), it’s important to be realistic about how effective a flipped chamber would have been. Odds are, it would have led to a court designing the map after the political branches deadlocked. But this court would likely have been a conservative state court or a federal court stacked with Trump appointees. Such a court may well have produced a plan almost as pro-Republican as the ones we’re now going to get from elected (and unchecked) Republicans.
4. Relatedly, the 2020 election largely confirms the redistricting picture that was already coming into focus before Tuesday. Thanks to Rucho, when a single party controls the line-drawing process, we’re likely to see unprecedented abuses: extreme and durable gerrymanders, frequent re-redistricting, non-contiguous districts, and so on. But thanks to developments over the last few years, there will be significantly fewer states where a single party enjoys unfettered control compared to the 2010 cycle. In previously gerrymandered states like Michigan, Ohio, and Virginia, a commission will draw the lines. In North Carolina and Pennsylvania, state courts will police the output of the political branches. In Wisconsin, divided government will probably yield a court-drawn map. Surveying the entire country, the only major states where Republicans will be able to freely gerrymander seem to be Georgia, Missouri, and Texas. For Democrats, the only such states are Illinois, Maryland, and Massachusetts. So the redistricting story of the 2020s may well be fewer—but more egregious—gerrymanders.
The following is a symposium contribution from Ned Foley (Ohio State):
The nation has a new president-elect, Joe Biden. Yet at the same time, there is no official president-elect, because the electoral process itself hasn’t yet reached that point.
How can both these assertions be true? And if they are, how are Americans supposed to understand that? Most importantly, how can Americans of opposite parties get on the same page, so that we can move forward together as one country, as our new president-elect in his impressive victory speech is urging us to do?
The key is to understand that when it comes to ending elections, there are actually two different processes at work, and they operate on different timelines.
The more familiar process is cultural. It’s the pageantry of democracy, developed over decades of traditional rituals, which usually occur on Election Night. First, there come the projections of an Election College winner, from the networks and other media outlets once a candidate has apparently achieved popular-vote victories in enough states for an Electoral College majority.
Soon after those media projections, the losing candidate acknowledges the reality of those numbers and gives a public concession speech. The winning candidate, in turn, gives a victory speech and, as a practical matter, is president-elect.
All of that, however, is far ahead of the official process for bringing the election to a close. Election Night tallies need to be converted into officially certified outcomes. This requires the canvassing of returns, when the preliminary tallies are verified and provisional ballots are included in the totals, along with military and overseas ballots and any others that cannot be counted immediately.
Recounts may be necessary, not because of problems, but just as an extra step of verifying accuracy. The various verification measures, so salutary for the election’s integrity, inevitably take time—days or even weeks, depending on the laws of different states, and how much verification is needed in any particular election.
But until the final certification of the popular vote occurs in enough states for an Electoral College majority, there is not yet an official president-elect in any sense. Indeed, to be technical, under the Constitution there can’t be an official president-elect until the Electoral College actually casts its votes for president, which will occur this year on Monday, December 14.
As Americans, we never want to wait that long to say we have a president-elect.
This year it was hard enough to wait just four days for the media’s unofficial projections of a winner.
This wait has been blamed mostly on Pennsylvania’s failure to change its laws to permit early “pre-canvassing” of mailed ballots, in the way that Florida and other states allow. That change would have been good, but it would not have permitted an Election Night winner, even unofficially. It was necessary to count enough provisional ballots for the media to “call” the state, and provisional ballots by definition cannot be pre-canvassed.
In 2008, Missouri could not be “called” for two weeks because of provisional ballots, although most Americans ignored this fact because Missouri that year did not matter to reaching an Electoral College majority. This year, Arizona still hasn’t been called by some outlets (and perhaps was called prematurely by others), even though it made the change to early pre-canvassing of mailed ballots advocated for Pennsylvania.
As difficult as it is, Americans need to get used to the fact that sometimes presidential elections will be “too close to call” for several days or even longer.
And what is the significance of these unofficial media “calls”?
Networks and newspapers immediately labeled Joe Biden “president-elect” as soon as they made their projections Saturday. That is their First Amendment right, although it has no governmental status. But it was the basis on which Biden gave his victory speech—a victory that Trump defiantly will not acknowledge. Other elected Republicans are struggling with what to say.
GOP Senators, like Roy Blunt, are not wrong when they observe that there is still a legal process to play out. But they should do more to recognize, as Blunt himself signaled, that this legal process will end with the same conclusion as the media’s unofficial projections.
Former president George W. Bush struck the right note when he congratulated Joe Biden as “president elect” while simultaneously acknowledging Trump’s “right to request recounts and pursue legal challenges.”
The problem is Trump’s assertion of this right, based on all known facts. It is honorable to challenge an opponent’s victory when there’s a good-faith basis for doing so, but it is dishonorable when there’s not.
Everyone knows that Trump will never be able to admit that Biden won fair-and-square. Because of this, it is essential that other Republicans do so.
While they can wait for the certification of results to say that Biden’s victory is official, they cannot wait to repudiate efforts to discredit that victory.
The message now must be Bush’s: the legal process, once complete, will confirm an outcome already “clear” and “fundamentally fair.”
The following symposium contribution is from Jim Gardner (Buffalo):
One week after the election, it now seems safe to say that Americans narrowly dodged the worst threat to liberal democracy since the outbreak of world war in 1939: a continuation of the illiberal authoritarian rule of Donald Trump. Despite threats of violence – some emanating from the president himself – the voting was peaceful, the counting routine, and the margin seemingly sufficient to secure the outcome from official obstruction, judicial or otherwise.
While the result was encouraging, the future of American liberal democracy remains uncertain and precarious. I have three main worries.
Continuing authoritarian stimuli. When strongman leaders suffer clear and public setbacks to their hold on power, they can fall precipitously. Former supporters, their fear suddenly dispelled, sometimes line up to help kick the declining leader to the curb as he exits the political stage. If the strongman regime is then followed by a liberal democratic one, the political arena may be largely cleansed of authoritarian stimuli, and its prior adherents, the authoritarian signal lost, may thus drift back into the liberal democratic fold – subject, however, to the critically important proviso that the successor regime display some degree of performative success.
Might events in the U.S. unfold in this way? On one hand, Trump’s support seems to draw upon a coalition of illiberal populists, who deny longstanding American commitments to principles of citizen equality, popular sovereignty, the rule of law, and basic human rights; and regular Republicans, who retain those commitments but have supported Trump reluctantly out of habitual partisan loyalty. The latter group, possibly the larger of the two, might be inclined to return to the fold if sources of authoritarian stimuli in the political environment now go quiet.
On the other hand, it is far from clear how quiet those sources will become. As long as he has strength to move his thumbs, Trump is likely to continue constantly to tweet out dog-whistle stimuli to his loyal supporters. He has already threatened to run again in 2024, ensuring he remains salient to Republican party politics. And the pro-authoritarian media, including the authoritarian propagandists at Fox News, who did much to prepare the ground for Trumpian populism, can hardly be counted on to mute themselves over the next four years.
Authoritarianism in the states. Federalism provides opportunities for a political party or movement out of power at the national level to retain a significant base, and to exercise meaningful authority, at the subnational level. Many American states have over the last few years taken multiple steps down a globally well-trod path to authoritarianism. As a result, electoral rejection of authoritarianism at the national level may simply relegate it to pockets of dominance in various states. There it will remain protected, regionally popular, and politically salient, ready to re-emerge in national politics should an opportunity arise.
Authoritarianism in the federal courts. Ever since the final days of the John Adams administration, when Federalists frantically appointed supporters to federal judgeships, politicians have understood that partisan capture of the federal judiciary can offer a stronghold at the national level to a party temporarily turned out of national elective office. For forty years, Republican administrations have pursued this strategy diligently, and the federal courts, including the Supreme Court, now carry a majority of judges who have been vetted carefully for adherence to the party’s commitments. During the run-up to last week’s election, these courts showed a marked tendency to uphold profoundly illiberal vote suppression measures enacted by Republican-controlled state legislatures or Republican election regulators. The Supreme Court itself has taken up a position of federal judicial non-interference in state regulation of electoral processes, a position that enables authoritarian-inclined state officials to continue to insulate themselves from meaningful political competition.
In light of these considerations, it seems to me that any return in the United States to the kind of stable, reliable, consensual liberal democracy that prevailed during the last half of the twentieth century is uncertain and, at best, a long way off.
The following symposium contribution is from Rick Pildes:
Back on March 20th, in what must have been one of the first pieces to address how the election process would need to adjust to the emerging pandemic, I wrote that a massive shift to no-excuse absentee voting could “create[] the prospect that one or more battleground states might flip from an apparent ‘victory’ for one side on election night to a victory for the other by the time the official vote canvass is completed.” In particular, “[i]f the presidential election this fall is close, with the margin of victory turning on a couple of close states, it is not hard to imagine President Trump seemingly pulling ahead on election night and in the important next-day coverage but then falling behind over the next week or more as those decisive states shift to the Democratic column when the full canvass of votes becomes complete. And it does not take a fertile imagination to picture what would then erupt in the courts, on social media and maybe in the streets.”
This eruption has indeed taken place in the courts and on social media. But it appears, as of now, that we have dodged the bullet. But just barely: because Joe Biden’s margin of victory appears to rest (as of now) on four states, not one or two, including one state – Pennsylvania – where the margin is many tens of thousands of votes – destabilizing the result is not likely. But had the outcome turned on two states with small margins, and long delayed vote counts, we might well have plunged into civil chaos or worse. We cannot put ourselves in this position again. From the experience of other democracies, we know that one of the most dangerous moments, often triggering spirals of violence, is a contested election for the head of government, with no institutions having the legitimacy to resolve that contest in a way the losers will accept. The United States is no longer in a position to be complacent about that risk.
Our election system must therefore adapt to the reality of the political culture within which we now exist. Let’s be clear-eyed about that culture, which is not likely to disappear soon: a culture of deep distrust and suspicion, in which 25% of supporters on both sides this year believed their candidate could lose only if the process were rigged. A culture in which social media will instantly inflame sinister interpretations of any problems in the process, real or perceived. In this toxic environment, fomenting doubt on the integrity of the process has also become a tool politicians use to mobilize angered voters led to believe the election is about to be stolen. Violence is latent, easily mobilized.
Instead of simply contesting policies and candidates, we are also now in endless battles over the ground-rules of the election process itself, even up to the eve of the election. In state after state, we fight one battle after another over whether ballots must be requested and returned by this date or that date, and a myriad of other issues. Last minute decisions from election officials, state courts, and federal courts shift the ground-rules back and forth. We cast votes under the existing rules, then wait to learn whether courts will invalidate those rules after the fact. None of this inspires confidence in the solidity and integrity of the process.
These are profound challenges, far beyond what election reform alone can address. But in the area of election reform, this election provides new reasons we might be better off fighting out the ground-rules for national elections in Congress, rather than across 50 states. Federalism has many advantages, but on a number of voting policies, it matters more that we have a clearly settled, stable policy well in advance of the election than the actual content of that policy. Tradeoffs exist between maximizing every possible opportunity for voters to participate and other important values, such as bringing finality to elections sooner rather than later, in a political culture in which long delays inevitably will be exploited by one side or the other. If we battled those tradeoffs out once and for all in Congress, the resolution would not just be nationally uniform, but more stable. National politics involves a broader array of groups and generates a more thorough focus on these issues than in state legislatures.
National legislation would also minimize one of the worst features of our current system, which is that state election laws for national elections can be challenged in both state and federal court, thus tying these policies up in court all the longer. Moreover, federal courts might well be more reluctant to overturn features of a congressional election code, given the greater legitimacy that attaches to the arduous, national lawmaking process. Indeed, perhaps Congress could consider a provision barring legal challenges to the election code once it gets too close to the election. Congressional legislation is also more difficult to change than state laws, given the structure of the national lawmaking process.
The best time to enact such legislation is probably during divided government. If one side can ram down the throat of the other its maximal agenda, that solution is likely to be undone the next time the other side returns to power. Policies underwritten by some degree of support from within each party, which would require compromise from both sides, are more likely to provide a fixed framework for elections. To be sure, some issues about voting policy, such as non-discrimination ones, are so central they cannot be subject to compromise. But many issues, such as those about deadlines, or methods of voting, and others involve legitimate tradeoffs between different democratic goals. Resolving those kind of issues through national legislation, underwritten with cross-party support, would help solidify our election structure in the face of the stresses we managed to survive this time from the kind of political culture in which we find ourselves, unfortunately, living.
I have written this piece for Slate. It begins:
President Donald J. Trump hasn’t conceded the presidential race to his Democratic challenger Joe Biden yet—something that would be a normal step in the peaceful transition of power. Instead, Trump has continued to make unsubstantiated claims of voter fraud and to threaten new lawsuits that he says will expose the fraud and lead to his victory. (They won’t.)
Given Trump’s norm breaking throughout his presidency, his failure to concede early is hardly a surprise. The question is whether we should worry about it, and whether his failure threatens that peaceful transition. So far, the signs are hopeful that we will make it through this period, but all is not rosy. Responsible Republican congressional leaders are not yet on board but likely will be soon. On Sunday, all Republican House Leader Rep. Kevin McCarthy would say was that the nation had to wait for the process to play itself out, while former President George W. Bush called Biden “President-elect” and acknowledged Trump could pursue his legal remedies: “The American people can have confidence that this election was fundamentally fair, its integrity will be upheld, and its outcome is clear.” Irresponsible voices, though, are trying to delegitimize the Biden presidency from the beginning….
The one group that has not spoken up yet, and that is crucially important for acceptance of election results, is the rest of the Republican congressional leadership, beyond McCarthy. For example, on Saturday, Senate Majority Leader Mitch McConnell declined to weigh in on Biden’s election, pointing to an earlier statement about letting the vote counting and legal process play out. Other senators have taken different tacks: Mitt Romney and Lisa Murkowski congratulated Biden, and some 2024 aspirants such as Ted Cruz and Josh Hawley ridiculously mimicked Trump’s unsupported voter fraud claims.
Perhaps most important was the message coming from Republican Sen. Roy Blunt, considered a leading adult voice among Republicans in the Senate. Speaking on ABC’s This Week on Sunday, Blunt refused to acknowledge Biden’s victory at this moment, but signaled that it is put-up-or-shut-up time for the president’s legal claims: “It’s time for the president’s lawyers to present the facts, and it’s time for those facts to speak for themselves.” Blunt said that the process of choosing the president was nearing the conclusion, and suggested as head of the Inauguration Committee that he looked forward to working on a Biden transition.
This is exactly the playbook that Republicans used when Kentucky Gov. Matt Bevin sought to get the Kentucky Legislature to take away his Democratic opponent Andy Beshear’s victory in the 2018 governor’s race. Bevin alleged fraud without providing proof. Republican leaders in the Kentucky Legislature gave Bevin a few days to come up with the proof. When he produced nothing, they got impatient, and Bevin eventually conceded, blaming the “urban vote” on his way out the door.
The same thing is likely to happen with Trump. Biden has a wide enough Electoral College lead, and a wide lead in enough states, that it is impossible to see Trump litigating his way to reversing a Biden victory unless facts come to light about a major failure in vote counting across multiple states. Trump has plenty of claims he can bring and every right to bring them. But the claims will not amount to anything substantial. He can ask for a recount in Wisconsin, for example, but the chances of overcoming a 20,000 vote deficit are practically impossible when the average statewide recount moves numbers by about 300 votes.
This haphazard process causes problems in at least three respects:
First, it opens the door for charges that something is amiss, as it might have struck some with the returns from Pennsylvania, where the count first had one candidate up by thousands of votes, only to swing entirely in the other direction. This can leave the impression that sinister forces were at work, when it was just a function of the partisan makeup of the counties whose votes were being counted, or the type of vote — mail-ins, for example, which are disproportionately Democratic — being reported.
Second, for state legislatures, this “mirage” phenomenon could encourage mischief. For instance, the prohibition on early processing of mail votes in Michigan, Pennsylvania and Wisconsin has been laid to Republican lawmakers, who control the legislatures of those three states. Those decisions appear to have produced exactly this effect — to have the first reported results look much better for Republican candidates than the overall tally, thus influencing the election narrative. There’s value in shaping the headlines even if the bottom line remains unchanged.
Finally, the uniquely American approach to counting and releasing election returns — with each state running its election its way — can lead to days of unnecessary and often misleading televised drama, with negative consequences for our mental (and physical) health. How many hours were wasted in the past few days refreshing web pages with election results or sitting in front of the television? How much productivity was lost? How much avoidable stress was created? How much social turmoil could have been avoided?
It doesn’t have to be this way. In Canada, for instance, a nonpartisan federal agency administers elections using a uniform set of rules and procedures across the country. Brazil has a similar system. Indeed, David Carroll, director of the Carter Center’s democracy program, told The Washington Post recently that the decentralized nature of the U.S. electoral system for choosing a national leader is unique. Even so, there is no question that Congress, under the Constitution’s Elections Clause, could impose uniform national rules at least for federal elections.
Miles Parks for NPR:
Even though all the major news networks, including Fox News, called the race for former Vice President Joe Biden, Saturday was the only the beginning of a long road to convincing a sizable portion of the American public who won the presidency.
President Trump has spent much of his four years in power amplifying false claims about election fraud, which has eaten into the confidence many Republicans have in the voting process.
Now those Republicans are having to decide whom to believe: election officials from both parties in charge of voting or Trump, who continues to falsely say he is the rightful winner. It’s the latest step in a game plan he has laid the groundwork on for years.
Before this election, about two-thirds of people who said they had little to no confidence in the vote-counting process were supporters of the president, according to AP VoteCast data.
And now Trump has seized on those doubts. He and his campaign have shared conspiracy theory after conspiracy theory about why votes were still being counted after Election Day, even though the tallying process was going roughly according to plan….
Social media groups have quickly sprung up in the days since voting stopped, to spread disinformation about supposed cheating on the part of election officials, and in some cases organize in-person protests.
“This is the most intense online disinformation event in U.S. history and the pace of what we have found has only accelerated since [Election Day],” said Alex Stamos, director of the Stanford Internet Observatory and Facebook’s former chief security officer.
The social media groups are reusing channels that have previously been aimed at sharing other conspiracy theories that cater mostly to Republicans, says Melissa Ryan, who runs the firm Card Strategies, which researches disinformation.
“These ‘Stop The Steal’ protests are clearly building off the infrastructure from the reopen protests that we saw earlier in the year during the pandemic,” Ryan said. “And frankly, they’re using the same strategy and infrastructure as the Tea Party back in 2009, 2010.”
Trump has been the driving force of that misinformation online, however. Three of the four most popular posts on Facebook in the past 24 hours were posts by the president in which he falsely claimed victory or alluded to doubts about the election’s fairness.
Emily Bazelon in the NYT Magazine:
America’s pandemic election was a remarkable, unlikely feat. “The challenges and obstacles were perhaps the highest in history, or at least since the Spanish Flu in 1918, and we saw fewer problems than in any presidential election since Bush v. Gore,” said Nathaniel Persily, a Stanford law professor and co-director of the Stanford-M.I.T. Healthy Elections Project. This spring, there were warning signs that with the coronavirus spreading, swing states like Pennsylvania, Wisconsin and Michigan would not be able to set up and run a vote-by-mail operation of unprecedented scale while simultaneously staffing thousands of polling places among them. The checklists were long and logistically complex. The resources were lacking. Asked for $4 billion, Congress allocated $400 million. Election officials in states like Washington and Colorado, where voting by mail is nearly universal, told me that it took them multiple election cycles to get it right. Some primary elections this year underscored the doubts by going badly, with election offices sending thousands of absentee ballots too late to be returned on time (Wisconsin), discarding mail-in ballots for minor errors at alarmingly high rates (New York) or taking weeks to count ballots (New York and Pennsylvania).
But as Nov. 3 approached, county and local officials rose to the challenge. They contracted with printing companies, where workers ran the presses overtime to churn out millions more ballots than had ever been requested before. They coordinated with postal workers to send out ballots and receive them in mass deliveries. They collected ballots from drop boxes and sorted them. They hired tens of thousands of people to open envelopes, inspect the ballots inside for voter errors and feed the verified ones into scanners for tabulation. Thousands of poll workers made voting in person possible, too.
Election officials had help from a small but highly skilled group of academics like Persily. These are the law professors and political scientists who pay continual attention to the health of our elections, focused on sacred questions of voting rights and also prosaic ones about checking signatures. Private philanthropists also provided states with hundreds of millions of dollars to pay for poll workers and personal protective equipment and voter education, expenses the government traditionally covers. After the election, when I asked several academics how the mechanics went, they expressed relief and even sounded a note of celebration. “It could easily have been a total train wreck,” said Michael Morley, a law professor at Florida State University who served in the George W. Bush administration. “Instead, we can be proud about how well our election officials conducted this election under extremely adverse circumstances.”…
This year’s election could well be a turning point for voting by mail in America. In February, Richard L. Hasen, a law professor at the University of California, Irvine, who has studied elections for decades, convened a group of bipartisan experts who proposed a series of nuts-and-bolts changes to make absentee and in-person balloting more accessible.
The reforms included giving voters in every state a chance to fix an error like a missing signature on a mail-in ballot and ensuring that counting ballots isn’t subject to delays. If election officials can begin processing ballots early, this year has taught us, they have time to get in touch with voters to address mistakes on ballots and also complete the count on or close to Election Day.
These are small steps, technocratic rather than visionary, but ones that can help increase participation and trust. Congress could set national standards and fund states to implement them. “It’s time for uniform rules,” said Stephen Vladeck, a law professor at the University of Texas, Austin. “We’ve learned a lot about how ballots should be distributed and validated.”
Yet in recent litigation about voting by mail, Republican lawsuits have resurrected a theory that could prevent state courts and election officials from enacting changes that protect voters from disenfranchisement. The idea is that the rules for an election must come exclusively from the legislature. It derives from the Supreme Court case that effectively decided the presidential election in 2000 — Bush v. Gore. But it has lain dormant since then, because it was never adopted by a majority on the Supreme Court….
So far, these legal developments are a skirmish. At press time, the deadline extensions appeared to have little effect, because the number of mail-in ballots that arrived after Nov. 3 seemed small. But the cases laid the groundwork for future battles over election rules, large and small. “This is now at the top of my list,” Hasen said. “The federal courts are threatening to become the greatest impediment to election reform.”
The following is a symposium contribution from Derek Muller (Iowa):
President-Elect Joe Biden’s margin of victory in the Electoral College and in decisive “swing states” is increasingly impermeable to potential recounts or “faithless electors.” It’s reminiscent of the margins of the 2016 election—recounts don’t change tens of thousands of votes, and electors are rarely faithless even under the most ideal conditions.
So what happens to Republican Party of Pennsylvania v. Boockvar, the biggest pre-Election Day case still sitting before the Supreme Court? The dispute concerns the Pennsylvania Supreme Court’s decision to require counties to accept ballots received up to three days after Election Day, as long as they were postmarked by Election Day or lack a postmark.
The Republican Party argued that this judicial order—construing the commonwealth’s constitution—breached the legislature’s clear statutory directive that all ballots must be received by Election Day. It’s an argument from Article II of the Constitution, that the “legislature” directs the manner of appointing electors, and, as Chief Justice Rehnquist put it in a concurring opinion in Bush v. Gore, “the clearly expressed intent of the legislature must prevail.”
Philadelphia County reported 500 or so in this three-day period; Allegheny County, which includes Pittsburgh, tabulated 947 ballots; Luzerne County reported 255 ballots, or about 0.2% of the county’s vote total. (Pennsylvania has been tabulating all votes but keeping these disputed ballots separate from others.) It appears a push by the post office and public awareness of the importance of mailing ballots early have minimized such disputed ballots.
It seems unlikely the statewide total of such ballots exceeds even 10,000. The margin separating the candidates now sits around 40,000, and pulling these ballots—even if every single one were cast for one candidate—wouldn’t change the result.
So what happens to this case?
Mootness: One argument might be that the claim is moot. The election is over, and a judicial decision wouldn’t change the outcome. Doesn’t that mean there’s no live case left?
Election law cases like one this are often treated as an exception to mootness, “capable of repetition yet evading review.” Anderson v. Celebrezze (1983), Storer v. Brown (1974), Rosario v. Rockefeller (1973), Dunn v. Blumstein (1972), and Moore v. Ogilvie (1969) are just a few expressly addressing the mootness point. Anderson, for instance, involved John B. Anderson’s independent presidential campaign in 1980—in a decision the Court issued in 1983.
It seems strange to say it “evades review” when, well, the case was in front of the Supreme Court before Election Day. But no one says the Court’s mootness precedents are the most coherent.
Cert-worthiness: Another question is whether the case is still worthy of granting certiorari. If it doesn’t affect the outcome of the election, why hear it?
Four justices have already written or signed onto pre-Election Day opinions showing interest in revisiting this Article II issue about the power of legislatures: Justice Alito, joined by Justices Thomas and Gorsuch, in the Pennsylvania litigation; and Justice Kavanaugh in litigation from Wisconsin. (Justice Kagan, joined by Justices Sotomayor and Breyer, pushed back against Justice Kavanaugh’s position.)
Justice Barrett did not participate in these disputes. It’s not clear why Justice Kavanaugh didn’t join Justice Alito’s opinion. And Chief Justice Roberts concluded that his reluctance to weigh in on the Pennsylvania was attributable to “the authority of state courts to apply their own constitutions to election regulations,” along with “different precedents.” Precedent, perhaps, as Justice Kagan cited, like Arizona State Legislature v. Arizona Independent Redistricting Commission, a dispute arising out of the context of congressional elections (not presidential election), and one that Chief Justice Roberts dissented from but may now feel bound by.
In short, it’s unclear whether there are four votes to grant certiorari, or how it might shake out if certiorari is granted. But the interest, and the intrigue, remains high, in my view.
Reliance interests: One cut against the plaintiffs’ claims would be the reliance interests of the voters in a pre-Election Day posture rather than a post-Election Day one. That is, voters dropped ballots in the mail by Election Day with the assumption that Pennsylvania would count those votes if received by November 6.
But I wonder if an emphasis on “it doesn’t matter if these votes are counted because the result is the same” makes reliance interests less salient. That is, the Court might feel more comfortable in the post-Election Day posture knowing that these ballots feel more like an abstract proposition than outcome determinative.
*
There would be significant complications in the ensuing briefing if certiorari is granted. Does the Court revisit precedents like Arizona State Legislature? Does it treat presidential elections differently from congressional elections? Does it treat judicial construction of statutes differently from construction of state constitutions?
I don’t know what happens if the Court grants cert. But I think it remains a distinct possibility that it chooses to do so, when it has ample time for briefing and when it knows its answer will not alter the outcome of a pending election. And that decision could be transformative for future election cases.
The following symposium contribution is from Sam Issacharoff (NYU):
I was born in Argentina under Juan Perón. History has unfortunately given us too many charismatic demagogues, elected to office and quick to turn on every institution that brought them there. Some are talented public figures, including Perón himself, and some merely symptoms of a society running aground. The 20th century versions of these demagogues adored Mussolini, Franco and played with all the elements of fascism. The 21st century ones are less transformative but now find Putin irresistible.
Perón was never defeated electorally. He was overthrown in his second term by the military, and then died in office when he returned from exile two decades later. Peronism still casts a shadow over Argentine governance that has withstood military coups, scandals, hyperinflation, and dismaying economic dislocations.
Will Trumpism become the American Peronism? Trump is now on his way out. The departure is and will be noisy, full of recriminations, full of claimed victimhood, all the trappings of a destructive four years. To be sure, Trump is no Perón. Perón genuinely raised the aspirations of working-class Argentines and the social commitments of Evita left a legacy that included raising wages and providing guaranteed national health care. Trump will leave office with a tax cut for the wealthiest Americans and little to show ordinary working people.
But Peronism tapped a politics of resentment that roils the country to this day. Perón never had to face the consequences of his irresponsible economic policies and became a martyr for an ill-defined political legacy. By contrast, Trump lost the election and both before and after tried to torch the system by claiming fraud.
Much to Trump’s chagrin, something extraordinary happened this November. In the face of a pandemic, more Americans voted than ever before, the highest percentage in a century. Because of the number of close states and the laborious process of counting millions of absentee ballots, the process of tabulating the results took place over an amazing five days. There in front of tv cameras were the unsung heroes of democracy. In state after state, people could watch their fellow citizens, at table after table with one Republican and one Democrat, counting the ballots. Hour after hour they labored, almost all volunteers, shoring up democracy at a most difficult time.
Trump could take to television early on to claim victory, shout about the fraud occurring, and his sons could even call on the faithful to take to the streets. But on television, citizens saw something else. An orderly process that was transfixing because it seemed so routine, so ordinary. By the time the election was called on Saturday, the Trump calls to resist fell somewhere between shrill and silly.
But now Trump wants to go to court to claim fraud in multiple states. Please do so. Challenge military personnel on deployment as fraudulent voters in Nevada. Pursue a rumor that someone saw 50 illegal ballots dumped into the mix in Georgia. Claim that 150,000 votes in Pennsylvania somehow were slipped in with no vigilance. Go ahead. And, of course, go raise money for putative appeals, but with 50-60 % skimmed off for the Trump coterie. A grifter once, a grifter always.
The final election margins were narrow but these kinds of election challenges never go anywhere when there are tens of thousands of votes at issue. Recall that in 2000, Bush was ahead in Florida and was trying to protect a lead against after the fact changes in counting procedures. The Trump group was so eager to claim fraud, that they could not wait for the election. All the practices they now complain about were already vetted through the courts before the elections.
Trump will have to show fraud in state after state, and he will have to provide evidence more substantial than Rudy Giuliani peacocking it for a microphone. He will be rejected by court after court, as he has been already. He will not be able to blaspheme about “Mexican judges” and all the nonsense of the past four years. He will appear a whiner, unmoored and, most of all, a loser.
For Trumpism not to become the American Peronism, there needs to be a moment of repudiation so that political life may move on. The election may not have been enough. Let the lies be tested in courts to ground the lessons in our political psyche. Our citizens and our democratic institutions deserve respect. They saved us last week and maybe we need some unfounded lawsuits to reinforce that lesson. By subjecting his irresponsible rhetoric to legal scrutiny, Trump may finally be performing a genuine public service.
As a follow-up to the #2DaysOut symposium I ran on the Sunday before election day, I have asked the same group of leading election law scholars to weigh in with thoughts on where we stand with the election and election law looking back over the last week. The prompt is broad, and the perspectives are diverse. I’ll be posting these today and tomorrow.
While President Trump insists on Twitter that ballots have been improperly counted and argues that President-elect Joe Biden‘s victory is premature, two sources told Fox News that Trump would concede and execute a peaceful transfer of power if his campaign’s legal challenges fall short of changing the projected outcome.
The Trump campaign has filed suits in several battleground states where Biden led by a razor-thin margin, including Nevada, Pennsylvania, and Georgia. It claimed instances of illegally counted votes from up after Election Day and that poll watchers were blocked from observing counting.
NYT:
The aides said Mr. Trump had no plans to immediately deliver the kind of concession speech that has become traditional in past presidential elections, and his campaign vowed to continue waging the legal battle across the country. In a statement issued while he was still on the golf course, Mr. Trump said Mr. Biden was trying to “falsely pose” as the winner.
“The simple fact is this election is far from over,” the president said, “Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated.”
Mr. Trump’s advisers said the president has refused to acknowledge that he has lost, maintaining his baseless accusation that Democrats had stolen the election.
But they do not believe he will try in any way to block Mr. Biden from taking office, and said that if he has not delivered a formal concession speech by the time he departs, pressure may mount on his Republican allies, family members and friends to convince him that he must give in to the inevitable and let the American people know that he accepts their judgment.
Even some of Mr. Trump’s oldest advisers, like former Gov. Chris Christie of New Jersey, have said publicly that he needed to have actual evidence to make the claims he has been making about the election.
“This kind of thing, all it does is inflame without informing. And we cannot permit inflammation without information,” Mr. Christie said on ABC News on Thursday night.
Frank Luntz, a longtime Republican pollster, described Trump as being at a crossroads.
“I think what Donald Trump does in the next seven days will determine his future as well as America’s future,” Luntz said. “The more that he fights, the stronger he becomes among his supporters, and the weaker he becomes among everybody else. It’s been clear to me from the comments that I’ve gotten today. From the hard-core Trump people, he needs to stay and fight. From everybody else, he needs to accept the outcome. And there is no middle ground.”
The math is looking near-impossible for President Trump to win re-election. But he should take pride in what he’s done for the nation and the world these last four years. It’s a legacy he could easily run on in 2024 — if he quits the conspiracy-addled talk of a “stolen” election. . . .
To lock in his legacy, though, Trump must rally Republicans to move forward — by behaving with dignity in the face of likely defeat.
Yes, the election saw a lot of unfairness: Pollsters demoralizing Republicans with predictions of a Biden landslide and a Democratic blue wave; media in the tank for Joe Biden and relentlessly supporting his absurd claim that Trump is to blame for every COVID death.
But the president’s aides have shown no evidence that the election was “stolen.” Where Trump won several key states by razor-thin margins to take the White House in 2016, Biden seems to have done the same this year. It undermines faith in democracy, and faith in the nation, to push baseless conspiracies. Get Rudy Giuliani off TV. Ask for the recounts you are entitled to, wish Biden well, and look to the future.
If Trump persists in wild talk to the contrary, he’ll lead his people into irrelevance and marginalize his own voice. His years in the White House have transformed the nation, but refusing to let go now will make it easier for his enemies to undo it all.
From Washington Post:
“What’s interesting is that Trump is now the leader of the resistance,” said Simon Rosenberg, founder of the liberal NDN think tank. “He can do a lot to make it far more difficult under what is already very difficult circumstances because of covid. He’s going to create a powerful logic for a third to 40 percent of the country that Biden’s presidency is illegal from the start, and he’s working really hard to continue to build that narrative.”
Alana Abramson for TIME:
Shortly after the Associated Press projected that Joe Biden would win enough electoral college votes to defeat President Donald Trump, Trump released a statement saying that his campaign would go to court Monday to fight the outcome. “Networks don’t get to decide elections,” Trump’s personal attorney, Rudy Giuliani, said later at a press event at a landscaping company in Philadelphia, “Courts do.”
That is, of course, not the case. With the notable exception of the 2000 presidential race, which was effectively decided by the Supreme Court in Bush v. Gore, it is voters who decide elections. And that, legal experts say, is the main flaw with Trump’s strategy: Biden has won too many votes for the Trump campaign to mount any legal challenge that would actually change the outcome.
For an election to be successfully litigated, experts say, the margins between the candidates have to be exceedingly close. The dispute between George W. Bush and Al Gore two decades ago, for example, hinged on just 537 votes in Florida. Election litigation is only consequential, says Nathaniel Persily, a professor at Stanford Law School, “if the number of contested ballots exceeds the margin of victory.”
As of November 7, Biden is leading Trump by over 4 million votes, according to the Associated Press. The state-by-state count that determines the electoral college count is even more daunting for the President. Biden leads Trump by nearly 35,000 votes in Pennsylvania, 25,700 in Nevada, 20,500 in Arizona and 7,250 in Georgia. Trump needed victories in nearly all of these states to amass 270 electoral votes, and the Associated Press has called every one but Georgia in favor of Biden. (Other outlets have withheld calling Arizona for Biden). Recount laws vary by state, but in every state except Georgia, the margins appear too large for the states to automatically issue one.
The campaign has other legal options beyond recounts, but experts say those are also unlikely to succeed. The Trump team can, for example, contest the validity of the remaining ballots that have yet to be counted. Or they can sue to get some ballots thrown out on the basis that they were filled out unlawfully. So far, their record on both counts is not encouraging for the President.
Prior to the election, Republicans in Texas, including an activist and a local legislator, tried to get ballots thrown out in Harris County, where they argued that nearly 130,000 ballots cast at a “drive-through” polling location were unconstitutional. That argument did not pass muster in either state or federal courts. In Nevada, the Trump campaign unsuccessfully tried to sue to halt ballot-counting in Clark County, only to appeal to the Supreme Court after a lower court rejected the claims. (The campaign has tentatively reached a settlement with Nevada officials to allow increased access).
The post-election legal landscape doesn’t look much better for Trump, as the barrage of litigation his campaign has already filed since November 3 shows. In the past four days, the campaign has filed more than half a dozen lawsuits in state and federal courts in Pennsylvania, Nevada, Michigan and Georgia. Most of these cases attempt to push for more access to the ballot counting process, and allege without evidence that fraudulent votes have been cast. They’ve seen little success. Judges in Michigan, Nevada, and Georgia have collectively rejected three cases.
The only real success the Trump campaign had this week was in Philadelphia, where a Judge ruled they could be within six feet of watching the canvassing process. But even that decision has already been appealed to the Pennsylvania Supreme Court, and legal experts say that, at a minimum, it will merely slow down the process.
Top congressional Republicans declined to offer congratulations to President-elect Joe Biden, or even comment on his win, as the White House and its GOP allies remained defiant that the race isn’t over for President Trump.
Senate Majority Leader Mitch McConnell (R-Ky.) and House Minority Leader Kevin McCarthy (R-Calif.) were silent with no plans to issue any statement Saturday about the race, according to GOP aides speaking on the condition of anonymity to discuss the leaders’ plans.
Meanwhile, Trump’s staunchest allies vowed to fight on, adopting the president’s baseless claims that voter fraud corrupted the results. Ronna McDaniel, the Republican National Committee chairwoman, made this the official position of the party, calling any results premature and saying that the election wasn’t over until “any investigations of irregularities or fraud play out.”
Senator Mitch McConnell, the majority leader, declined on Saturday to acknowledge Mr. Biden’s victory, with an aide instead pointing reporters to a generic “count all the votes” statement the Kentucky Republican released on Friday before the results were known.
This is not good enough.
WaPo:
Trump campaign manager Bill Stepien urged supporters to be ready to attend protests or rallies that the campaign is “propping up around the country” in a call Saturday with allies and surrogates, according to audio obtained by The Washington Post.
“Stay at the ready,” Stepien said. “At a moment’s instance, we may need your help at protests in your states, to make sure the president is represented and our side of the argument is shown. Support rallies or other things that we are propping up around the country.”
“Rallies to show support for the president are also things we are encouraging around the country,” he added.
Stepien took a pugilistic tone — saying the president was prepared to keep battling, even as the race is called for Biden.
“Just be at the ready at a moment’s notice. We may need your help and support on the ground, waving the flag and yelling the president’s name in support,” Stepien said.
He encouraged donors to contribute to the legal defense fund for the president and to distribute a campaign hotline for potential fraud cases so they could have evidence in various states.
To be clear, “rolling with it” will convince even more of Trump’s supporters that the election was stolen from him, despite all the available evidence that this election was conducted fairly. It is deeply irresponsible for lawyers to bring these suits to assuage Trump’s ego.Quote Tweet
“Unless something new happens, I don’t see a viable path for Trump to litigate his way out of an Electoral College loss,” says election law expert Richard Hasen, of the University of California, Irvine.
Florida State University law professor Michael Morley agrees, noting that Biden still has several paths to victory.
If Biden carries Pennsylvania, where his lead is growing substantially, he doesn’t need to carry any other state to win.
And if he doesn’t carry Pennsylvania, he has other paths to victory. Assuming the AP projection of a Biden win in Arizona holds, the former vice president needs only Nevada or Georgia to win, and for now, he is leading in both.
“The easy thing” [for the justices] to do is to say, ‘Why bother,'” says professor Derek Muller, of the University of Iowa School of Law. Muller notes that some conservative Supreme Court justices have expressed an interest in “revisiting” the question of whether a state legislature’s majority party view of the law supersedes a state supreme court interpretation. But, he adds, that it is “unlikely” the justices want to insert themselves into the political brambles when, as of now, there is no evidence of major fraud or misbehavior that would make a difference to the outcome of the election.
Right now, Trump, whether he likes it or not, would appear to be “outside what’s called the margin of litigation,” observes professor Edward Foley, director of The Ohio State University election law program. That’s what happened to Democratic presidential candidate John Kerry in 2004, Foley explains. Kerry was teed up and ready to bring legal challenges in Ohio, but, “the votes just weren’t there” in large enough numbers to justify the litigation.
BPC with a useful list of how this all becomes official.
Here is the Trump statement:
As I and others have explained, Trump’s litigation strategy is going nowhere. It is not going to make a difference to the election outcome.
It is time for more responsible Republican leaders to step up; that’s what a peaceful transition of power looks like.
As I write this, some decision desks have called the election for Biden. I expect others will soon follow suit, and the math indicates a Biden win. The results will not be official until January, when Congress counts electoral college votes. Before that, states will complete their counting, and in some places (such as Georgia) there may be automatic recounts before there is certification.
There could also be more litigation before certification in each state, but it is extremely unlikely to change the result for reasons I and others have explained. None of the lawsuits are likely to succeed: almost none go to the vote count, and the one in PA would only matter if the election were close enough that late counting ballots would make a difference. They won’t, based on everything we know. The other lawsuits are just tinkering around the edges. Recounts at the statewide level are extremely unlikely to change election outcomes, and not in enough states to change the electoral college results.
President Trump now has a choice to make. He could graciously concede, as Presidents Carter and George H.W. Bush did when they lost after one term. I don’t expect it to happen. At best he will grumble and continue to claim the election was stolen from him. At worst, he will try to undermine a Biden presidency by continuing to spread false and malicious claims that the election was stolen and that there was fraud.
And that means that other Republicans have a choice to make too. I would like to see Mitch McConnell quickly come out and accept the election results, and others as well, including George W. Bush. Peaceful transitions of power require losers to accept election results as legitimate and move on to fight another day. Trump may not do that, but other responsible voices must do so.
The country needs healing and voices across the political spectrum need to squash down the disgusting and unsupported claims that the election is stolen. Full stop. It is dangerous to democracy.
You can listen here.
Rebecca Green in the Richmond Times Dispatch.
Meanwhile, the first $142,000 contributed to the Biden recount effort goes to the DNC.
Here is a military spouse who the Trump campaign has baselessly accused of committing voter fraud in a Nevada lawsuit. When Christian Adams’ PILF made similar accusations calling legal voters “aliens,” they got sued and Adams had to apologize to settle the case.
Important to note that the presidency is not the only thing on the line in the dispute over late arriving mailed ballots in Pennsylvania. From the Democrats’ brief:
the ballots contain votes for state races that are not implicated in this case, as RPP’s challenge extends only to votes cast in federal races. State law requires county boards to provide unofficial returns to the Secretary by 5 p.m. on November 10 and, in certain circumstances, requires the Secretary to order a recount based on those returns by November 12. See Statewide Return and Recount Directive Procedures (Nov. 1, 2020). It is thus critical to the operation of Pennsylvania’s recount procedures with respect to state races that the Secretary have as accurate as possible a count of the ballots by next week. RPP’s requested relief would upend that statutory scheme.
Let’s say the probability of a recount in state 1 changing the result of the initially tabulated vote in favor of losing candidate B is 0.2% (I made the 0.2% figure up just for illustration). But B needs to have recounts in four states do the same thing in order to affect the outcome of the election, and to keep it simple, let’s assume the margins that he’s behind are the same in all four states. So in each state, the probability of that happening is 0.2%.
But the probability of that happening for candidate B in four states is NOT 0.2% — indeed, far from it. It is 0.2%x0.2%x0.2%x0.2%. That means it is a very small number, 0.0016%.
This is known as the principle of conjunctive probabilities, first discovered by Fermat.
This assumes the four state counting processes and any errors in them revealed in a recount are independent of each other.
Jeb Bush has a very good point-by-point account of how Florida, after the 2000 Bush v. Gore debacle, dramatically modernized its election system to give us one of the best run states this year. He lists 11 changes, too much to excerpt here, and this is not what people are focused on right now. But when it comes to the discussions of how we avoid some of this year’s problems, this model set of reforms, successfully implemented, will be an excellent place to start.
In the key states we are still waiting on, it looks like Libertarian candidates received considerably more votes than the margins Trump is losing by currently. These numbers can of course change, and don’t assume anywhere near all Libertarian voters would have ranked Trump second — many third-party voters are so alienated from both candidates, they won’t vote for either as a second choice. This year, in addition, some of these might also be protest votes against Trump, from voters who would otherwise vote R but did not want to vote for Trump — further reason they might not have ranked a second choice.
My recollection is that about 50% of third-party voters do vote for a major party candidate as a second choice, when given the option. The nature of the race and the candidates can also change that percentage, of course.
I have not looked to see whether there are states Biden lost by small numbers in which third-party votes went to other candidates on the left, in which the RCV vote transfer might have put Biden over the top.
Here’s the numbers currently (*8.30 am Nov.7):
GA Trump deficit: 7,248 Libertarian Candidate: 61,792
AZ Trump deficit: 29,861 Libertarian Candidate: 47,632
PA Trump deficit: 28,833 Libertarian Candidate: 77,108
Good morning Rob Richie, I’m sure you will be able to tell us whether there is good reason to conclude, once all the numbers are in, whether President Trump would have been re-elected if all states used RCV. Is Jo Jorgensen the Ralph Nader or Jill Stein of 2020?