Fulton County’s absentee-by-mail processing operation at State Farm Arena was delayed four hours today after a water pipe burst in a room with ballots.
No ballots were harmed thanks to the slant of the room, voting officials told the elections board Tuesday night. But that likely ruins the hope by officials of having a three-quarters count by 10 p.m. to 11 p.m.
“There was a pipe that burst in the room where we actually had ballots, thank goodness that none of those ballots were damaged,” said Dwight Brower, with Fulton County elections.ExploreFulton election update: Delivery snafu, shorter lines, few tech problems
Board members asked when the public would have results from Georgia’s most populated county.
“It’s going to be later than what we would like it to be,” said Ralph Jones, a top Fulton elections manager.
Me, over at the Slate live blog.
Do yourself a favor and read Franita Tolson in the NYT on the 1876 election and Samuel Randall:
In the weeks leading up to Tuesday’s election, scholars and political commentators have been busy gaming out doomsday scenarios on the small, but unlikely, chance that there is a contested result. Despite the existence of laws designed to mediate such disputes, concerns abound because of the tremendous uncertainty in the constitutional and statutory framework governing federal elections.
More than any other contest, the 1876 election shows us that our laws and democratic institutions have not always been up to the task of resolving an election crisis. We still face the prospect that consequential decisions may fall to a single person — be it a candidate, a governor, a legislator or an election official — who may have to decide between party and country in resolving a contested election.
In 1876, that person was Samuel Randall, who played a key role in avoiding dueling inaugurations where the Republican nominee, Rutherford B. Hayes, and the Democratic nominee, Samuel J. Tilden, each presented themselves as the lawfully elected president of the United States. Decisions that Randall, a Democrat, made as the speaker of the House might have forestalled the violent conflict — both inside and outside of the congressional chamber — by supporters on both sides if their candidate was not declared the winner.
With its heady mix of voter disenfranchisement, election fraud and extreme partisanship, the Hayes-Tilden dispute was a political maelstrom for which the U.S. Constitution had no specific remedy. The Constitution leaves significant discretion in the hands of officials who are tasked with facilitating the selection of the president. This discretion was often misused, and the years leading up to 1876 would set the stage for such abuse.
I have written this piece for Slate. It begins:
Republicans filed a new lawsuit in Pennsylvania on Tuesday, and it is a window into the kind of post-election maneuvering that we could see both legally and politically should the election come down to the Keystone State.
The big Pennsylvania litigation before today involved a decision of the state Supreme Court, relying on the state constitution, to extend the date for receipt of mailed ballots for three days given the pandemic, until Nov. 6. That lawsuit could still be revived after the election, and there could be a fight over whether those ballots should be counted. (There’s a very strong argument those ballots should be counted, but the votes have been cabined and some of the U.S. Supreme Court’s conservatives have signaled antipathy to the state court’s decision.) This is one of only a number of lawsuits that could pop up in a kind of trench warfare should the election be razor-thin in Pennsylvania. People often forget that there were over 20 lawsuits in Florida and not just Bush v. Gore back in 2000.
This latest lawsuit alleges that Montgomery County, Pennsylvania has been contacting voters who have voted by mail and whose ballots have a defect (like a missing signature) to give the voters a chance to fix (or “cure”) the problem. Not all the counties are doing so, and a Republican candidate whose district includes Montgomery argues that, under the Supreme Court’s Bush v. Gore decision, it is a federal equal protection violation for some voters to be notified about curing their ballots and others not. They want the practice to stop and for ballots that were cured to not be counted.
The federal claim is really weak for three reasons…
Can’t wait to read this (hopefully not timely) one from Justin Levitt (forthcoming NYU L. Rev.). Here is the abstract:
Questions about the state legislative role in determining the identity of presidential electors and electoral slates, and the permissible extent of a departure from regular legislative order, have recently reached peak prominence. Much of the controversy, including several cases to reach the Supreme Court, has concerned the constitutional delegation of power over pre-election rules. But a substantial amount of attention has also focused on the ability of state legislatures to appoint electors in the period between Election Day and the electors’ vote.
An asserted legislative role in the post-election period has two ostensible sources: one constitutional and one statutory. The constitutional provision — the portion of Article II allowing states to appoint electors in the manner the legislature directs — has received substantial scholarly and judicial attention. In contrast, there has been no prominent exploration of the federal statute, 3 U.S.C. § 2, despite text similar to the constitutional provision. This piece appears to represent the first exploration of that federal statute as an ostensible basis for legislative appointment of electors in the aftermath of an election, when that election has “failed to make a choice.” After reviewing the constitutional controversy, the essay canvasses the history of the statute and its context. And it discovers a previously unreported historical anomaly, which might well affect construction not only of the statutory text, but the constitutional predicate, in the event of a disputed presidential election.
NBC News rounds up the reports.
Democrats have been clear in their condemnations of the president’s comments, which they consider the most worrisome of Trump’s four years in office, which were often marked by anti-democratic rhetoric.
“When Donald Trump says, ‘I think I deserve a third term, or I think the election should end on election night, that’s the way it’s always been,’ I don’t think he’s joking. I think we should take him deadly seriously,” said Democratic senator and top Joe Biden surrogate Chris Coons. He compared Trump’s statements to aspiring autocrats in young democracies that he dealt with when he was chairman of the Senate Foreign Relations Committee’s Subcommittee on African Affairs. “We would rally the international community and say, ‘No, you should not do that. It’s not a good idea. That violates the norms of democracy.’”
But most Republicans, from critics to allies of Trump, have remained publicly silent. It’s not new for Trump’s party brethren to duck and cover when he says something troubling. But after five years of perfecting the art of explaining how they “didn’t see the tweet” — the much parodied talking point to which Republicans on Capitol Hill often resort — it is shocking but not surprising that they aren’t speaking up now, even when the integrity of America’s electoral system is under attack by their party’s leader….
Sen. Ben Sasse didn’t respond to a DM. Chris Christie didn’t return a text. A message to the spokesman for Sen. Josh Hawley, an up-and-comer in the party, went unanswered. Sen. Lindsey Graham didn’t return a call after POLITICO left a voicemail for him. (Graham’s outgoing message offered the option of sending a fax but a reporter did not avail himself of that method of communication.)
White House spokeswoman Alyssa Farah promised to call back but never did. Rudy Giuliani went silent, even though a reporter sweetened the deal by agreeing to hear him out on the Hunter Biden intrigue, a current Giuliani obsession. Karl Rove was kind enough to respond, but he was too busy to discuss the president’s comments sowing doubt and mistrust about the sanctity of the election process, because, he said, his “flight is getting ready to shut the door and pull away from the gate.”
An unidentified robocaller has placed an estimated 10 million calls in the past several weeks warning people to “stay safe and stay home,” spooking some Americans who said they saw it as an attempt to scare them away from the polls on Election Day.
The barrage of calls all feature the same short, recorded message: A computerized female voice says the message is a “test call” before twice encouraging people to remain inside. The robocalls, which have come from a slew of fake or unknown numbers, began over the summer and intensified in October, and now appear to have affected nearly every Zip code in the United States.
The reach and timing of the calls recently caught the attention of YouMail, a tech company that offers a robocall-blocking app for smartphones, as well as some of the country’s top telecom carriers, which determined from an investigation that the calls may be foreign in origin and sophisticated in their tactics. Data from YouMail shows that the calls have reached 280 of the country’s 317 area codes since the campaign began in the summer.
You really need to read the whole thing:
President Trump is talking about “bedlam” — and even “violence in the streets” — if results aren’t known on election night. In fact, he is trying to create bedlam where none exists. He’s seeking to precipitate enough discord and doubt to cause citizens to disbelieve in the vote-counting process.
There should be no bedlam in the counting of ballots. It’s a rather boring process, but it works very well.
For absentee and mailed ballots, election officials make sure that each ballot comes from an eligible and registered voter. That verification is a good thing; it assures the integrity of the election. That’s something Trump and his fellow Republicans who are concerned about fraud should be supporting, not bemoaning.
The process will naturally take time, even days, because of the large number of mailed ballots this year as a result of the pandemic. There is nothing wrong about this. Waiting for official results is a feature of the system, not a bug….
It sounds as if Trump wants to derail the counting of ballots so that an accurate result can’t be reached. That’s the vote-counting version of Trump supporters trying to force a Biden campaign bus off the road. Never before has a sitting president openly called for a subversion of procedures in place for an orderly counting of ballots that citizens have a lawful right to cast.
Let’s be clear about the cause of concern. I’m not especially worried when the president says “as soon as [the] election is over, we are going in with our lawyers.” His lawyers must present evidence that will be evaluated on their merits according to the rule of law. That’s how it should be….
What worries me more is the bedlam that Trump himself may cause outside the courts. The so-called “Brooks Brothers riot” in 2000 shut down the recount in Miami-Dade County. While I don’t think it will be so easy to shut down the basic counting of ballots under state law, enough mischief could cause the process to run out of time. All state electors must cast their official votes for president on Monday, Dec. 14.
Apart from this risk, the gravest danger is throwing so much mud that the public gives up hope of knowing a fair and accurate result. Then a state legislature might try to repudiate the count of voters’ ballots and appoint its own electors.
I offered some similar thoughts yesterday in a post, Still Not Normal and Deeply Disturbing: President Trump Falsely States That Supreme Court Ruling on Pennsylvania Ballots Will Lead to Cheating and “will also induce violence in the streets”
Read the brief, asking for relief tonight, before Election Day, but limited: “Plaintiffs respectfully requests that this Court reverse the order below which found a lack of standing by Plaintiffs to challenge drive-thru voting on Election Day, and to issue a preliminary injunction banning drive-thru voting on Election Day, November 3, 2020.”
My earlier coverage is here.
Update: Here is the opposition.
And Harris County Clerk is closing 9 of 10 drive-thru locations given this new uncertainty.
Final update: Late last night the Fifth Circuit denied the emergency request without comment.
Hidden behind a Twitter warning that “Some or all of the content shared in this Tweet is disputed and might be misleading about an election or other civic process,” President Trump tweeted the following:
It is hard to know whether this tweet is more ridiculous or more dangerous.
It is ridiculous because all that the U.S. Supreme Court did was allow the state of Pennsylvania to count ballots that arrive by Nov. 6 if they are postmarked by election day or lack a visible postmark. Many states have much greater deadlines for the receipt of mail-in ballots. In California, it can be 17 days. Even those who think that the U.S. Supreme Court should have rolled the Pennsylvania deadline back to November 3 don’t think it will lead to fraud; the objection has to do with the relative power of the state legislature and the state supreme court applying the state constitution to set election deadlines. There is absolutely no evidence of widespread fraud or cheating that comes from counting ballots in a public process, even if those ballots are counted after election day or arrive after election day.
But it is dangerous because here is the president, on his own, raising the specter of violence. We know stores are boarded up and people are very tense over this election, which both sides tend to view in existential terms. Rather than fan the flames or raise the risk of violence, the President should be calling for all Americans of good faith to come together in the midst of the pandemic and to exercise our sacred franchise.
I don’t expect violence tomorrow night, but Trump’s statements have made things so much worse. It shows you how much the public and media have become worn down and how this has been accepted as relatively normal that this tweet on the eve of the election is not covered in nonstop special reports on every network and news station. If any other President did this, it would surely be. But for Trump, it’s just another in a series of incendiary tweets.
People died for the right to vote and our election administrators and volunteers have worked tirelessly to insure that a record-setting number of Americans can vote safely and securely, even during the pandemic. We should put this despicable tweet to the side, put our heads down, and push forward into assuring we can have a fair election.
You can find the order in two parts. The reasoning was primarily about lack of standing and laches in bringing suit, something I anticipated would play a great role in this case: defendants knew this voting was going on for months, sat on their hands, while 120,000 Harris County voters relied upon a lawful means of voting. The public interest heavily favors letting people who are legally entitled to vote not to be disenfranchised.
The case is now on appeal at the 5th Circuit (No. 20-20574) where I expect the case to similarly fail.
There is one wrinkle that gives me pause. District Court Judge Hanen opined that state law authorization for voting ON election day using drive thru voting is illegal under Texas Law even if pre-election day voting was allowed. He only rejected an injunction as to election day because of the standing problems. He did not appear to order that ballots cast in drive-thru on election day be segregated, as seemed possible from the oral report of the hearing.
It’s unlikely drive-thru votes on election day would not be accepted, but it is at least conceivable that the 5th Circuit or another court could order drive-thru ballots segregated for further legal proceedings. For this reason, I would strongly caution against using this method of voting on Election Day.
AP:
A veteran Republican operative who got his start in politics by helping to persuade a judge to throw out hundreds of mail-in ballots is organizing an “army” of volunteers for President Donald Trump’s campaign to monitor voting in Democratic-leaning areas on Tuesday.
Mike Roman, Trump’s director of Election Day Operations, is a former White House aide from Pennsylvania who gathered claims in 1993 of voter fraud, resulting in a court ruling overturning election results and getting his candidate seated in the Pennsylvania State Senate.
It’s a strategy that Trump has been advocating on Twitter and on the stump.
For months the president has been trying to undercut the validity of mail-in ballots, a long-used method of voting that was up this year because of the COVID-19 pandemic. Over the last week, Trump has also suggested that any votes tabulated after Election Day are suspect, even as his campaign has opposed plans by elections officials to start counting mail-in ballots early.
Roman, who previously ran the secretive in-house intelligence unit for the political network led by GOP mega-donors Charles and David Koch, has organized a purported 50,000 poll watchers, many of them through an “Army For Trump” website that asks his supporters to “enlist” in his reelection fight. The campaign also has hired full-time staff in at least 11 battleground states to organize the effort, several of them young lawyers.
Brian Stelter for CNN:
If President Trump comes out and prematurely claims victory on Election Night, what will television networks and social media websites do?The scenario — undemocratic and unthinkable in the past but a very real possibility with Trump seeking to stay in power — is causing media and tech executives to debate potential responses.
For the major television networks, one question is paramount: Will they carry Trump live if he is giving a speech and making completely specious claims?
The short answer is yes. Though network executives are reluctant to talk publicly about such a hypothetical and disturbing scenario, five people at various networks said on condition of anonymity that they fully expect the President’s Election Night remarks to be shown live virtually wall to wall.
However, any premature claims by the President — or by Joe Biden, for that matter, though there is no equivalent fear of that happening — will be wrapped in televised context, with vigorous corrections and visual proof that the race is too close to call.
The Washington Post has published this new op-ed of mine. As readers here know, I made my efforts to change this situation, now all that’s left is to assign blame:
Pennsylvania’s Democratic governor and Republican legislature will both deserve blame for hurtling the country toward a potential election nightmare should the election be close. In a perfect example of the dysfunction that plagues so much of our governing process, their failure has made Pennsylvania a likely center of chaos in a close election….
Grasping this reality, many states changed their laws to permit election officials to tackle ballots earlier than normal…
But not Pennsylvania. The governor and legislature recently made sure of that by failing to reach any agreement on this issue, despite state election administrators from both parties pleading for them to do so. If only 5 percent of voters had cast their ballots by mail, as in past Pennsylvania elections, this would not be a problem. But with as many as 3 million absentee ballots on their way, it’s a disaster waiting to happen.
Both sides in Pennsylvania understood this problem and appeared to want to change it. Yet they failed in their public responsibility, to Pennsylvania and the country. The legislature was prepared to permit the process to begin three days before Election Day. This period would have made a significant difference in how quickly Pennsylvania could process these ballots and include many of them in the vote totals it released on election night. It would have been the difference between waiting two days for a full count or five days.
But Republicans in the legislature insisted on packaging this critical proposal with other voting policies they wanted changed. Meanwhile, Gov. Tom Wolf (D) argued that election officials be able to start 21 days in advance and was not willing to accept the policy changes the legislature was demanding.
In states that permit early processing, such as Florida, it has been going on quietly for almost three weeks. That early start has minimized political struggles over the validity of ballots. When polls close in Florida, the state will be able quickly to include most of its absentee ballots in its election night count.
But Pennsylvania is sitting on a tinderbox. In a close election, the state will be critical. Scorched-earth struggles over absentee ballots will erupt, with incentives on one side to drag that process out as long as possible. I am doubtful the country will sit patiently if Pennsylvania takes a week to figure out its vote. All this brought to you by a governor and legislature who provide a textbook example of much of what’s wrong with our politics.
With absentee ballots flooding election offices nationwide, the officials processing them are tentatively reporting some surprising news: The share of ballots being rejected because of flawed signatures and other errors appears lower — sometimes much lower — than in the past.
Should that trend hold, it could prove significant in an election in which the bulk of absentee voters has been Democratic, and Republicans have fought furiously, in court and on the stump, to discard mail ballots as fraudulent.
In Fulton County, Ga., home to Atlanta, just 278 of the first 60,000-odd ballots processed had been held back. In Minneapolis, Hennepin County officials last week had rejected only 2,080 of 325,000 ballots — and sent replacement ballots to all of those voters. In Burlington, Iowa, the number of rejected ballots on Monday was 28 of 12,310. And of 474,000 absentee ballots received in Kentucky, barely 1,300 rejects remain uncorrected by voters, compared to more than 15,000 during the state’s presidential primary in June.
The number of rejections could fall further. In those jurisdictions and many others, voters are notified of errors on ballots and can correct their mistakes, or vote in person instead.
A video of Joseph R. Biden Jr. deceptively edited to make it appear as though he were admitting to voter fraud was viewed more than 17 million times on social media platforms, according to Avaaz, a progressive human-rights nonprofit that studied the video.
The video was an edited clip from an Oct. 24 appearance by Mr. Biden, the Democratic presidential nominee, on the podcast “Pod Save America.” When asked about efforts to bolster election security, Mr. Biden gave a long answer and discussed Obama administration efforts to protect against voter fraud. He added that he had put together “the most extensive and inclusive voter fraud organization in the history of American politics.”
The deceptively edited video featuring that part of his statement — taken out of context to make it appear that Mr. Biden supported voter fraud — was shared on dozens of right-wing YouTube channels, Twitter accounts and Facebook pages. It was not clear on Monday who had made the edited video.
A spokesman for Mr. Biden’s campaign clarified that he, as seen in the full video, was discussing his efforts to prevent voter fraud.
The following is a guest post from Rob Richie of FairVote:
A Super PAC called the True Kentucky Patriots has a message for Bluegrass State voters that’s been all over local TV stations: The “true conservative” in the U.S. Senate race is Libertarian candidate Brad Barron, not Senate Majority Leader Mitch McConnell.
Liberty SC in South Carolina takes a similar approach as it targets Sen. Lindsey Graham from the right. Constitution Party hopeful Bill Bledsoe, the $1 million ad buy proclaims, is the “only true conservative on the ballot.”
Liberty SC and the True Kentucky Patriots have something else in common. Both are Super PACs financed by Democrats hoping to siphon votes away from a Republican incumbent and direct them toward a potential third-party “spoiler.” The Kentucky group has the same treasurer as the pro-Amy McGrath Ditch Fund, as in “Ditch Mitch.” And while Liberty SC gives every impression that it’s conservative, its finances are run through a bank well-known for its connections to Democrats. Bledsoe, who endorsed Graham weeks ago after dropping out, has complained bitterly about the ads
Both Republicans and Democrats have engaged in such expensive mischief for years, but it’s getting worse. In Minnesota this year, Republicans were caught recruiting a candidate to split the Democratic vote in a tight congressional race. In Montana, Republican operatives qualified the Green Party — especially odd since the Greens had not actually endorsed any candidates. Democrats then successfully sued to knock them off the ballot. In Kansas, meanwhile, Democrats sought to game the plurality system in a crowded GOP U.S. Senate primary, creating the odd spectacle of a liberal Super PAC backing Kris Kobach.
In the presidential race, Republican lawyers and consultants have boosted Kanye West’s quixotic campaign in multiple states, hopeful that the hip-hop star might keep young black voters from backing Biden in a state where fewer than 25,000 votes made the difference in 2016. Democrats helped kick Greens off the presidential ballot in the battlegrounds of Wisconsin and Pennsylvania – just as they temporarily did in state legislative races in Texas. Before the Texas Supreme Court made a last-minute reversal and put Greens back on the ballot, control of the Texas house and its redistricting plans in 2021 might have hinged on Libertarians staying on the ballot and Greens not. [This sentence has been corrected.]
Weaponizing third parties and hoodwinking those inclined to back them may be ugly, but consultants are simply giving into a temptation enabled by policymakers who maintain a vulnerability permitting partisan hacks. Consider that in the 2016 presidential race — when Robert Mueller’s legal team found Russian agents sought to persuade idealistic young people to vote for Gary Johnson and Jill Stein — more than six million votes were cast for third parties. As Al Gore might remind us, Ralph Nader’s 97,421 votes in Florida in 2000 was far more than those lost due to long lines or hanging chads.
The good news is there’s at least one easy, proven and increasingly popular fix. Ranked choice voting would put an end to plurality winners and corrosive tactics seeking to exploit them. If voters had the option to rank candidates in order, and a conservative in Kentucky could vote for Barron first and McConnell second, this sordid strategy would lose its power.
Maine already has ranked choice voting in place for its federal races, as do 20 cities and towns, to go with its use in five Democratic primary states this spring. A ballot question in Alaska would establish ranked choice voting for elections for president, congressional and state offices Massachusetts and five cities are also voting to adopt RCV.
In Maine, FairVote’s SurveyUSA poll last week found that ranked choice voting will likely avoid non-majority outcomes in both the U.S. Senate race and presidential race for the elector in the second congressional district. With a Green and Libertarian on the presidential ballot, RCV did not affect the presidential margin. But the strong first choice vote for Green Party independent Lisa Savage in the Senate race suggests RCV will improve Democrat Sara Gideon’s position in the instant runoff. Notably, rather than the usual acrimonious relationship between Democrats and Greens, Savage has endorsed Gideon as a second choice.
We’re polarized enough. Let’s remove the incentive for political parties and consultants to engage in negativity and chicanery. As long as candidates can win elections due to the majority splitting the vote, their consultants are incentivized to play dirty, pump money into surprising campaigns, and peel votes away from the opposition party. None of the ugliness of weaponizing third parties would happen with ranked choice voting: It removes both the incentive to furtively qualify a third party, as well as the spectacle of a major party suing to limit voter choices.
Let Kanye run. Let the Libertarians run. Let everyone run with the will and true support to get on the ballot. Just give voters the tools to sort it all out. They’re more than capable of determining the “true conservative,” and even putting them in order.
With the election coming to a close, the Trump and Biden campaigns, voting rights organizations and conservative groups are raising money and dispatching armies of lawyers for what could become a state-by-state, county-by-county legal battle over which ballots will ultimately be counted.
The deployments — involving hundreds of lawyers on both sides — go well beyond what has become normal since the disputed outcome in 2000, and are the result of the open efforts of President Trump and the Republicans to disqualify votes on technicalities and baseless charges of fraud at the end of a campaign in which the voting system has been severely tested by the coronavirus pandemic.
In the most aggressive moves to knock out registered votes in modern memory, Republicans have already sought to nullify ballots before they are counted in several states that could tip the balance of the Electoral College.
In an early test of one effort, a federal judge in Texas on Monday ruled against local Republicans who wanted to compel state officials to throw out more than 127,000 ballots cast at newly created drive-through polling places in the Houston area. The federal court ruling, which Republicans said they would appeal, came after a state court also ruled against them.
In key counties in Nevada, Michigan and Pennsylvania, Republicans are seeking, with mixed results so far, to force election board offices to give their election observers more open access so they can more effectively challenge absentee ballots as they are processed, a tactic Republicans in North Carolina are seeking to adopt statewide.
And everywhere, in a year that has seen record levels of early voting and a huge surge in use of voting by mail, Republicans are gearing up to challenge ballots with missing signatures or unclear postmarks.
In his last days of campaigning, Mr. Trump has essentially admitted that he does not expect to win without going to court. “As soon as that election is over,” he told reporters over the weekend, “we’re going in with our lawyers.”
Trailing consistently in the polls, Mr. Trump in that moment said out loud what other Republicans have preferred to say quietly, which is that his best chance of holding onto power at this point may rest in a scorched-earth campaign to disqualify as many votes as possible for his Democratic opponent, Joseph R. Biden Jr.
If there is a clear-cut outcome on Tuesday night that could not plausibly be challenged via legal action, all of the planning on both sides could become moot. But if there is no decisive result, the following days would likely see an intensifying multifront battle fought in a variety of states.
At least two dozen groups on the Chinese-owned social media app WeChat have been circulating misinformation that the U.S. Department of Homeland Security is “preparing to mobilize” the National Guard and “dispatch” the military to quell impending riots, apparently in an attempt to frighten Chinese Americans into staying home on Election Day.
The misinformation, which takes the form of a photo of a flyer and is in both English and Chinese, also warns that the government plans to impose a national two-week quarantine and close all businesses. “They will announce this as soon as they have troops in place to prevent looters and rioters,” it states. The flyer originally appeared on WeChat during the first surge of the pandemic, and it later spread to other social media. It recently resurfaced on WeChat.
“I’m sure thousands of people have seen that. I’m sure that it’s pretty widespread,” said Shaw San Liu, executive director of the Chinese Progressive Association in San Francisco, which has been tracking the flyer and other misinformation on WeChat. “We’re really concerned about making sure we get some good counterinformation, facts out there so that people are not discouraged because this is the last stretch.”
Each of us served as attorney general of the United States, one for a Democratic president, the other for a Republican. Over the years, in the course of disputing matters of law and policy, each of us has said critical, even harsh, things about the other. Please do not conclude from our joint authorship of this article that either of us would retract or even reconsider any of those past statements.
Far from it.
Rather, we write jointly because we would like to continue to disagree the way we have in the past, the way Americans generally have in the past. That is: within a political system in which winners of elections get to execute their policies for a prescribed period, so long as those policies conform to the law. Within a system in which winners of elections do not face the threat of societal and political paralysis as they attempt to govern….
Of course, the First Amendment guarantees people the right to demonstrate their views to their fellow citizens and to try to garner support for the changes they would like to see. But it assuredly does not give them the right to use those demonstrations to impose their will on fellow citizens. It does not give them the right to act out the view that if they cannot get the political outcome they want, their fellow citizens should not be able to lead peaceful lives.ADhttps://ce5bcd08417e956e7d0f4311d8b609b2.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.htmlThis should not require saying, but we feel compelled to say it: nor should our political leaders stoke or condone violence.
It is not only violence that can undo us. Even before Election Day, disagreements about how to count votes have generated legal disputes, and of course those disputes have gone to the courts. But there is a difference between taking legal disputes to court when necessary and conducting a campaign of litigation that obstructs more than it resolves. We strongly agree that votes must be counted fairly and voices heard in a way that preserves peace and promotes confidence in our system.
Finally, there is the insidious danger posed by charges that have nothing to support them other than an accuser’s invitation to us to hallucinate evil. The widespread distrust of our institutions and processes that such rhetoric encourages can paralyze us just as surely as violence or the uncertainty generated by a torrent of litigation.
Great dispatch from Slate’s Jeremy Stahl who trained as a “True the Vote” poll watcher:
Alan Vera, ballot security chairman for Texas’ Harris County GOP, wants prospective poll watchers to keep an eye on their coffee.
“Here’s a tip that I almost hate to have to tell you, but: Do not accept coffee from the election judge or any of the clerks,” he warns early in a training video for volunteer poll watchers. “We’ve had too many instances in the past where laxatives have been hidden inside coffee and our poll watchers end up spending the day in the restroom instead of in the polls watching what’s going on.”
This first rule of poll watching speaks to the bigger lesson I learned from sitting through hours of conservative poll watching training videos over the past several weeks: These programs are more about instilling paranoia in the Republican Party faithful than about actually teaching them to successfully suppress votes.
From the WSJ’s excellent technology writer, Johanna Stern:
The first rule of election social media is: You do not use election social media. We should all take the occasional social-media break in our lives—right now’s a great time.
My colleague Christopher Mims inspired me to go this somewhat extreme route. He has entered into a friendly bet to stay off social media until Nov. 16. I’m planning to stay off for the next few days.
There are a couple of reasons for my decision. First, doomscrolling. The algorithms have been designed to keep us hooked and in times of high, collective national anxiety I can’t look away. Not even with the help of screen and app timers that warn me when my time’s almost up.
Second, even I have fallen for a manipulated video and a tweet with news that proved not to be true. In the next few days, where unvetted news will be moving faster, why even put myself in that situation? Luckily, there are reputable news outlets that can give us factual, up-to-the-minute information—and you’re already reading the best one right now…
Don’t share
OK, so if you can’t possibly leave behind 5,000 of your closest friends while the fate of our nation hangs in the balance, I urge you at least to stop sharing.
Sure, the platforms themselves have rolled out tools to try to prevent you from sharing misleading and inaccurate information. But why even take the risk right now? What does your link and meme sharing really do? Get you a few more likes? Finally change Cousin Fred’s mind?
Kim Zetter for Politico:
Stein’s experience is far from unique: Time and again, people seeking answers about perplexing results or election anomalies encounter obstacles. Often the only examination occurs if parties or candidates request a recount — which means voters are largely at the mercy of partisan actors to even raise the questions.
The truth is that two decades after the Florida 2000 election debacle created a rift in the country, and four years after Russian interference in the 2016 election profoundly deepened that divide, the U.S. lacks satisfactory, uniform mechanisms for resolving questions about elections and verifying results.
The U.S. lags behind most other countries in this regard, said David Carroll, director of the Democracy Program for the Carter Center, which has monitored foreign elections since 1989 — even if many reasons exist to have overall confidence in the American electoral process.
“The United States has many areas where we don’t meet core international standards,” he said.
Almost every other democracy, he said, has uniform, nationwide election procedures; a central, independent election commission to oversee them and conduct investigations; a single, national election system; and an unvarying system for resolving disputes. “Whereas in the United States, there [are] 50 different election processes, 50 different sets of state laws,” Carroll said.
Also uncommon elsewhere: The U.S. places large portions of its electoral process under the control of elected state and local politicians, raising the potential for partisan interference.
The judge ruled that plaintiffs lacked standing, which was one of the many reasons this lawsuit was easy to resolve and garbage. My earlier analysis of why this case is so weak is here.
The judge is giving an oral ruling and is noting other issues, including that voters did not vote illegally and the case came too late. Follow Raffi Melkonian’s twitter feed for details.
We will see if there is an appeal to the 5th Circuit.
When I was writing my book, Election Meltdown, I recognized that although there are decent medium- and long-term ways to improve how our elections are run and bolster voter confidence in the legitimacy of our election system, short term solutions were hard to come by. So, with generous funding from the Democracy Fund, the Hewlett Foundation, and the Mertz Gilmore Foundation, I convened a conference that took place at UC irvine at the end of February called “Can American Democracy Survive the 2020 Elections?” Then some of the speakers at the conference–a cross-ideological and cross-disciplinary group of leaders in law, media, politics and norms, and tech—came together as a committee to draft a report on what could be done in time for the 2020 elections. We drafted the report mostly online just as the coronavirus crisis hit the United States, causing us to modify some of our recommendations.
We issued a report in April called Fair Elections During a Crisis with a set of 14 recommendations across law, media, tech, and politics. We are now a day before the election and I wanted to reflect on how well different actors who help assure we have safe and fair elections have done during this crisis. These views are mine alone. The committee stopped existing as a formal body after we issued the report, and I do not purport to speak for anyone else on the committee.
- Local Election Administrators A+
Our report recommended a number of steps that election administrators could take to deal with the tremendous difficulties of conducting an election during the pandemic both in person and absentee voting being more difficult. We called on election administrators to provide various paths to assuring voters have safe and healthy means of voting. We called on election administrators to consider how to deal with election emergencies and to make contingency plans. While there are still pockets of weak election administration, an overall grade of A+ goes to the local election administrators who have stepped up to be on the front lines of our democracy during this pandemic.
2. State legislatures and Secretaries of State B
This grade is an average grade. Some state legislatures deserve an A for stepping up and making voting easier during a pandemic, easing voting requirements for voting by mail and extending deadlines or early voting periods. This includes both Democratic and Republican led states. There was a subset of Republican state legislators and Secretaries of State, however, who have fought politically and in court against safe and healthy voting during a pandemic. Some of these folks deserve an F. States also need to do more about election security, paper backups, and risk-limiting audits, a topic which has gotten less attention than it deserves with everything going on. (An A for the coalition of federal, state, and local election administrators working on election cybersecurity behind the scenes.)
3. Senate Republicans F
Senate Republicans blocked additional money for election reform. Those expenses are still there during the pandemic and now we will just have sloppier elections, which raise the risk of problems that can delegitimize the election. Republicans in the Senate also blocked more money for election security.
4. House Democrats C
Democrats overreached in their election reform bills, including trying to pass laws to make no excuse absentee balloting permanent, and not just for this pandemic election, a total nonstarter with a Republican Senate. While there was no guarantee that Republicans would compromise, there was little sense or urgency coming from House Democrats about finding a viable compromise.
5. Social media companies C-
On the one hand, social media companies like Facebook and Twitter have addressed some of the problems concerning disinformation, and Twitter has perhaps been the best with its pre-bunking, its read-the-story-first friction, and its leadership with respect to treating Trump disinformation. Facebook has been good at addressing coordinated attacks, but they have not addressed the fundamental problems of how their model of engagement encourages disinformation. But overall, the companies seem still to be acting on the fly, constantly surprised by manipulation of their platforms, showing a deep failure to grapple with how they’ve become tools of disinformation. The handling of the New York Post Hunter Biden stories shows just how poorly prepared these companies have been even for things that could be easily anticipated.
6. NGOs A There have been a number of efforts to help bolster the legitimacy of the 2020 election, including from groups that have strived to be bipartisan and comprehensive in dealing with all kinds of threats to the election process. These groups have produced reports and issued guidelines for how to conduct fair and safe elections during a pandemic, and how to deal with potentially contested elections.
7. The Media Incomplete
The media have done an excellent job overall covering voting during the pandemic and the extent to which some actors have tried to make it hard to vote through court cases and legislative and administrative rules. This issue has gotten a lot of attention. There have been a lot of explainers about how voting works, and great public service messaging about how to maximize the chances of voting during the pandemic.
The reason for the incomplete is that the media’s biggest test comes on election night.
The pandemic has drastically shifted many people to voting by mail, but President Trump’s statements against voting by mail has created a partisan divide: more Democrats and independents are voting by mail and more Republicans are voting in person. Depending upon how states report their election returns, a state that starts out with a big Biden or Trump lead could reverse as more mail-in or in person votes get added into the mix.
The problem is especially dramatic in Pennsylvania because that state’s Republican legislature has blocked the early processing of absentee ballots (in contrast, in Florida we will have most of those absentee votes counted by the time the evening is over). According to calculations by FiveThirtyEight, we could be in a situation where Trump is ahead by as much as 16 points on election night in Pennsylvania, only to see a loss of 5 points or more when all the ballots are counted within about a week of the election: a 21-point swing.
Saying that a candidate is leading when the votes outstanding could skew one way or the other is a recipe for disaster, because supporters may believe the election is stolen with such dramatic shifts in voting results. That’s why it is crucial for media to give a “too early to call” message on election night in those states where the outstanding ballots easily could shift the results of the race.
The pandemic has drastically shifted many people to voting by mail, but President Trump’s statements against voting by mail has created a partisan divide: more Democrats and independents are voting by mail and more Republicans are voting in person. Depending upon how states report their election returns, a state that starts out with a big Biden or Trump lead could reverse as more mail-in or in person votes get added into the mix.
The problem is especially dramatic in Pennsylvania because that state’s Republican legislature has blocked the early processing of absentee ballots (in contrast, in Florida we will have most of those absentee votes counted by the time the evening is over). According to calculations by FiveThirtyEight, we could be in a situation where Trump is ahead by as much as 16 points on election night in Pennsylvania, only to see a loss of 5 points or more when all the ballots are counted within about a week of the election: a 21-point swing.
Saying that a candidate is leading when the votes outstanding could skew one way or the other is a recipe for disaster, because supporters may believe the election is stolen with such dramatic shifts in voting results. That’s why it is crucial for media to give a “too early to call” message on election night in those states where the outstanding ballots easily could shift the results of the race.
Here’s the full set of our recommendation on this topic from our cross-ideological, cross-disciplinary group in our Fair Elections During a Crisis report:
Best practices for election night coverage
Irresponsible media coverage risks endangering the perceived legitimacy of the election. News outlets need to prepare the public to understand a process that is unlikely to provide a quick resolution and whose results are likely to change as votes are tallied. We offer the following best practices as recommendations to the media:
• Prepare to report the results as “too early to call;” emphasize the need for a careful count rather than reporting that the timeline reflects an institutional failure
• Explain more votes will be counted after all precincts report due to mail ballots • Report estimates of expected votes outstanding or other information besides percentage of precincts reported (but beware of changes in those estimates, which may confuse people and create fears of fraud)
• Explain why shifts in vote margins are routine as counts of mail ballots are conducted and not indicative of fraud
• Avoid putting isolated events and unverified claims into live coverage
(especially TV) but be prepared to debunk viral misinformation if it reaches
large audiences or is amplified by national politicians or political figures
• Forecasts and exit poll projections are frequently incorrect; avoid emphasizing them for fear of affecting turnout or causing unfounded suspicions of fraud if they miss the mark
• Have election procedure experts on call to help inform reporters and editorsJournalists should report that vote counts continuing beyond election day are normal and that errors and delays are not necessarily indicators of nefarious intent.
Opportunistic elites will seek to take advantage of this confusion, particularly if it can harm the standing of the side that is likely to win. Irresponsible coverage that amplifies such claims runs the risk of encouraging more fundamental challenges to accepting the outcome of the election itself, a compact that is at the very heart of democracy.
Steve Vladeck in WaPo.
His Atlantic piece is called “How Trump Could Attempt a Coup”:
In public, Biden and his senior advisers profess full confidence in the electoral system to work as it always has. Every vote will be counted, they say, and the winner will be sworn in on January 20—end of story.
Behind the scenes, they are preparing for the worst. A special working group of high-powered lawyers led by three former solicitors general—Walter Dellinger; Donald B. Verrilli Jr.; and a recent addition, Seth Waxman—has overseen a massive planning exercise for rapid responses to dozens of scenarios in which Trump tries to interfere with the normal functioning of the election. Thousands of pages of legal analysis, according to an authoritative campaign source, have been boiled down into “template pleadings” for at least 49 predrafted emergency motions in state or federal court. The campaign will be ready on an hour’s notice to file for a temporary restraining order in any case it has thus far been able to anticipate.
“There’s no question that the Biden campaign has worked through every imaginable scenario and is certainly prepared—legally, at least—for any of these possibilities,” says Richard H. Pildes, a constitutional-law professor at NYU. Nothing Trump might do “would surprise the enormous legal team they’ve created to deal with twists and turns in the election. I assure you they’ve thought of more scenarios than the media would ever get to.”
The Biden team says it is ready even for scenarios it is sure will “never happen, and we’re not worried about it,” a Biden-campaign lawyer told me. “There have been a couple of lawsuits challenging Kamala Harris’s eligibility to be vice president,” he said. “Do we have stuff on that? Yeah. Do I think we have to worry about it? Absolutely not.”…
Most election-law experts I talked with expressed deep skepticism of this scenario.
“The kinds of things you’re talking about are the kinds of things that would lead to rioting in the streets,” said Richard L. Hasen, a professor at the UC Irvine School of Law. “Now we’ve truly crossed into banana-republic territory.”
Maybe rioting is just what Trump would want in order to validate the deployment, I observed.
“You’re one of the few people I know who’s darker than I am,” Hasen replied.
Trip Gabriel for the NYT:
“Hello, Elections.”
“Hello, Elections.”
“Hello, Elections.”
The rapid-fire calls were pouring in to Marybeth Kuznik, the one-woman Elections Department of Armstrong County, a few days before Election Day. “This is crazy,” she told an anxious caller. “Crazy, crazy, crazy. It’s a good thing because everybody should vote,” she added, “but it’s just crazy.”
Armstrong County, northeast of Pittsburgh, is one of Pennsylvania’s smaller counties with 44,829 registered voters. But it is a microcosm of the high tension, confusion and deep uncertainty that have accompanied the broad expansion of mail-in voting this year, during an election of passionate intensity.
With all Pennsylvania voters eligible for the first time to vote by mail, more than three million ballots were requested statewide — nearly half the total turnout from 2016. One in five voters in Armstrong County requested a mail-in ballot.
A complicated two-envelope ballot, uncertainty over the reliability of the Postal Service and a glitchy online system for tracking returned votes have caused Ms. Kuznik to be bombarded by callers. And, though to a lesser extent, she has also been visited by a stream of walk-ins at her small second-floor office in the county administration building, where an American flag was stuck into a dying plant above her desk.
A District Court judge has again blocked efforts by President Donald Trump’s re-election campaign and the Nevada Republican Party to delay the counting of mail ballots in populous Clark County over alleged issues with signature verification and observation plans — saying their claims largely lacked evidence or standing necessary for last-minute judicial intervention in the election process.
Carson City District Court Judge James Wilson issued the order Monday morning denying the request to halt mail ballot processing after a lengthy evidentiary hearing held telephonically last week. The decision ensures that Clark County — by far the largest county in the state — will continue its process for counting and processing the record number of mail ballots submitted for the 2020 election, without any delays that could potentially bottleneck results on Election Night.
Wilson wrote in the order that attorneys for the Trump campaign and the state Republican Party had failed to produce any evidence of “any injury, direct or indirect, to themselves or any other person or organization” that would be necessary standing for an eleventh-hour judicial intervention in the election process.
“There is no evidence that any vote that should be lawfully counted has been or will not be counted,” he wrote. “There is no evidence that any vote that should lawfully not be counted has been or will be counted. There is no evidence that any election worker did anything outside of the law, policy or procedures. Petitioners do not have standing to maintain their mandamus claims.”
Eric Geller for Politico.
Release via email:
Pornhub, the premier online destination for adult entertainment, today announced “Give A F**k, Get A F**k,” a campaign to encourage American users to vote. On Election Day, Pornhub will be reserved only for those who have voted in the United States.
“Roughly 43 percent of eligible voters – equal to 100 million people – didn’t vote in the 2016 U.S Presidential Election, according to turnout estimates from the U.S. Elections Project. We want to encourage people to do their civic duty this year by casting their ballot and having their voice heard,” said Corey Price, Vice President, Pornhub.
Leading up to the campaign officially launching on Nov. 3, Pornhub will be running a social campaign with an assortment of high-profile models – including Pornhub Brand Ambassador Asa Akira, Domino Presley, Natassia Dreams, Janice Griffith, Lance Hart, Soverign Syre and Lotus Laine – posting videos encouraging people to get out and vote and also teasing them that “if they don’t give a f***, they don’t get a f**k.” When the campaign officially kicks off on Nov. 3, Pornhub users in the United States will be greeted by an overlay page which will appear over the Pornhub website from 10 a.m. EST to 9 p.m. EST reminding them to vote before entering the site that day.
It is not clear if proof of voting would be required to enter the site, which would be illegal.
Donald Trump Jr. looked straight into a camera at the end of September as triumphant music rose in a crescendo. “The radical left are laying the groundwork to steal this election from my father,” he said. “We cannot let that happen. We need every able-bodied man and woman to join the army for Trump’s election security operation.”
It was an echo of what his father, President Donald Trump, has said in both of his presidential campaigns. At a September campaign rally in Winston-Salem, North Carolina, the president encouraged his audience to be poll watchers. “Watch all the thieving and stealing and robbing they do,” he said. “Because this is important.”
But the poll-watching army that the Trumps have tried to rally hasn’t materialized. Although there’s no official data, election officials across the country say that they have seen relatively few Republican poll watchers during early voting, and that at times Democratic poll watchers have outnumbered the GOP’s. In Colorado and Nevada, where the Trump campaign was particularly active in recruiting poll watchers, its efforts largely petered out….
The paucity of Republican poll watchers doesn’t necessarily reflect a lack of enthusiasm for the candidate. In fact, avid supporters may prefer more vocal or demonstrative ways of expressing their views than watching polls all day. Trump’s cries for help in the prevention of fraud make the poll watcher’s role seem far more dramatic and consequential than it actually is. More than 20 Trump campaign training videos for poll watchers, reviewed by ProPublica, make clear the mundane nature of the task, encouraging volunteers to be on time, to bring a water bottle, to not interact with voters and to be respectful “even to our Democratic friends!”
Poll watching “is like watching paint dry,” said Justin Levitt, a professor at Loyola Law School in Los Angeles, specializing in elections. “If you’re waiting for the busloads of fraud to arise, and what you get is small American-flag-waving democracy, you begin to go out of your head. It’s like sitting in a field waiting for the UFOs and the UFOs never show up. And then you’re just sitting in a field, which is fine for a couple hours, but polls are open about 15 hours a day.”
Analysts say that the president and his staff may not believe their own predictions of a poll-watching army, but that they may be raising the specter to deter Democratic voters from going to the polls. The campaigns also want people to sign up to be poll watchers, even if they don’t actually follow through, because their contact information helps identify potential donors.
Bob Bauer, the attorney for the campaign of former Vice President Joe Biden, said the Trump campaign is betting on scaring voters into staying home to avoid confrontation. But, he said, that tactic appears to have backfired, as young people and other likely Democratic voters have flocked to the polls during early voting.
Read it here.
Twitter on Monday provided more details about its policies around tweets that declare election results, and named the seven outlets it will lean on to help it determine whether a race is officially called.
Driving the news: The list includes ABC News, AP, CNN, CBS News, Decision Desk HQ, Fox News and NBC News — all outlets that experts agree have verified, unbiased decision desks calling elections.
Our thought bubble: Some conservatives have alleged that Twitter is biased against them. In the past few weeks, data from the Stanford Cable TV Analyzer shows that Fox News has discussed Jack Dorsey and Big Tech censorship at length.
Fox News’ Decision Desk is considered very authoritative and is highly-respected amongst media and politics insiders. By including Fox News’ decision desk in this list, Twitter is saying that it believes its decision desk is verified and legitimate.
David Kaplan NYT oped.