Election Law Blog

Sean Trende at RCP is offering a state-by-state analysis of how reapportionment and redistricting will affect House delegations from each State:

Following last week’s elections, Democrats will retain control the House of Representatives. At the same time, their margin will be considerably smaller than it was in the preceding Congress. Republicans will likely hold between 208 and 212 House seats, placing them within shouting distance of the majority in the next election.

This is first in a two-part examination of the relationship between redistricting/reapportionment and the Congress that will take office in January 2023. It concludes that without any extreme gerrymandering, reapportionment and redistricting alone will likely cost Democrats their majority, even before taking into account the national mood or the general tendency toward midterm losses for the party holding the presidency. Of course, litigation may change the calculus, but absent court losses in Pennsylvania, North Carolina, Virginia and Florida, Republicans would likely control the House in the 118th Congress elected in 2022. For our purposes here, however, we will assume that there will be no sea changes in voting laws.

Good read.

Here on twitter:

Politico:

Shortly before the major news networks called the election for Joe Biden on Saturday, Trump campaign manager Bill Stepien dialed into a private call for top donors and allies to insist his candidate could still win the race — and ask them one more time to chip in.

The margins are close, Stepien said, and the campaign is still fighting. And while he recognized the call was meant as a briefing on the recount fights and not a fundraiser, Stepien made an ask anyway: He urged the donors to go to the campaign website and give to Trump’s legal defense fund.

Much of the money raised by Stepien and the Trump campaign won’t go towards challenging election results, however, but to help set the stage for the president’s next act. The Trump campaign has a recount fund, but the money won’t go to it unless someone gives more than $8,333. Rather, 60 percent of a donation up to that amount for Trump’s “Official Election Defense Fund” is routed to a new PAC started this week by the president that can pay for a wide range of activities — but is likely legally barred from spending on recounts, lawyers say. The remaining 40 percent goes to the Republican National Committee, which is allowed — but not required to — spend on the recount. Prior to Tuesday, the majority of a donation went to helping Trump’s campaign cover its debt.

Politico oped:

Faced with this prospect, some allies of the president are advocating, or beginning to whisper about, Republican state legislatures taking matters into their own hands and sending slates of Trump electors to Congress regardless of the vote count.

This is a poisonous idea that stands out as radical and destructive, even in a year when we’ve been debating court-packing and defunding the police. The best that can be said for it is that it is almost certainly a nonstarter, which doesn’t mean that it won’t get more oxygen.

Donald Trump Jr. has pushed this option and Sen. Lindsey Graham, now bonded to Trump more firmly and completely than he was to the late Sen. John McCain, says “everything should be on the table.” A conservative in the Pennsylvania House, Daryl Metcalfe, has declared, “Our Legislature must be prepared to use all constitutional authority to right the wrong.”

We may be one presidential tweet away from this gambit becoming orthodoxy for much of the Republican Party….

State legislatures acting in the current context would be an extraordinary imposition. This scenario presumably involves the courts, first, rejecting Trump’s legal challenges because they lack the requisite evidence. So the vote counts in the key states would stay the same and there wouldn’t be compelling evidence of massive fraud, and yet the legislatures would act anyway.

The Republicans control the legislatures in all the key states, and they are subject to pressure from Trump and his supporters, but this would be asking them to defy the will of the people as expressed in a vote that would, by this time, have been litigated and perhaps recounted and audited.

One can only guess that the political reaction against this in the states in question would be thermonuclear. This must be one reason why the Republican leader of the state Senate in Pennsylvania, Jake Corman, has so far been steadfast in saying the Legislature is not going down this route.

Any such move would also be subject to litigation likely to go all the way to the Supreme Court. Even if the power of the legislatures is vast, there will be a dispute over whether they can ignore the results of elections that, prior to an unwelcome outcome, were supposed to determine the state’s electors.

On top of this, the legislatures appointing electors would trigger a historic donnybrook in Congress, which considers objections to electoral ballots under the Electoral Count Act of 1887. If Republicans aren’t united—and certainly a handful of senators, maybe more, would refuse sign up for this gambit—the party wouldn’t be able fend off objections to legislature-appointed Trump electors.

A more sensible path is to give the Trump team the time and space to pursue recounts and litigation. Then, if these efforts don’t produce reversals of vote counts or clear evidence of widespread fraud affecting tens of thousands of votes, to urge the president to fold his tent.

Philly Inquirer:

Even as President Donald Trump’s campaign is waging a well-publicized legal war on the broad rules governing the presidential election in Pennsylvania, its lawyers are engaging in lower-profile but no less important, county-by-county trench battles to disqualify individual votes in Philadelphia and its suburbs over technicalities.

Meanwhile, they are pursuing record numbers of challenges to “provisional” ballots, in some cases for grounds as small as the name of the county being misspelled.

Instead, their filings ask courts and county boards to disenfranchise potentially thousands of legitimate voters in Philadelphia and its suburbs over procedural errors made when filing their ballots.

There is no indication that the votes in question were specifically cast for Joe Biden — in fact, some voters contacted by The Inquirer said they voted for Trump. In the unlikely event that Republicans were to prevail in every ballot appeal they’ve brought before regional courts, the votes in question would still amount to only a fraction of Biden’s roughly 50,000-vote lead in the state as of Wednesday night.

And so far, these smaller-scale challenges have not been met warmly in court.

Detroit Free Press:

The attorney who brought a lawsuit against Wayne County and Detroit election officials this week claimed at a hearing Wednesday that local election officials had failed to refute claims of election fraud leveled against them and stated his right to ask the court to intervene to block certification of the election results.

The lawsuit, filed by attorney  David Kallman, also asks the court to void the Nov. 3 election and order a new one.

Lawyers representing local election officials denied the claims of fraud and argued that the case, if allowed to proceed, would disenfranchise voters, give credence to election conspiracies and potentially prevent Michigan from being able to appoint electors in time to cast the state’s Electoral College votes.

Wayne County Circuit Chief Judge Timothy M. Kenny promised to issue his ruling Friday.

AP:

Some of the suits filed on Trump’s behalf appear to be hastily thrown together, with spelling errors (“ballet” for “ballot”), procedural mistakes and little to back up their claims. Judges have been skeptical.

In Michigan, Judge Cynthia Stephens dismissed one filing as “inadmissible hearsay within hearsay.” When Trump’s lawyers appealed, the next court kicked the filing back as “defective.”

The campaign has so far scored just one small victory, allowing their observers to stand a little closer to election workers processing the mail-in ballots in Philadelphia. But the litigation keeps coming, usually centered on accusations from partisan poll watchers, who have no auditing role in the election, that something untoward may have happened, without evidence to back it up.

Senate Majority Leader Mitch McConnell, R-Ky., insists the president is “100% within his rights” to look into fraud allegations and pursue his legal options. Attorney General William Barr has authorized the Justice Department to investigate “clear and apparently-credible allegations of irregularities.”

Either way, experts doubt the suits can reverse the outcome in a single state, let alone the election. Trump aides and allies have privately admitted as much, suggesting the challenges are designed more to stoke his base.

See here for a running tally.

Milwaukee Journal-Sentinel:

Wisconsin lawmakers plan to issue their first subpoenas in decades as part of an investigation into the Nov. 3 election, even as the top Republican in the Assembly acknowledges the probe is unlikely to change the outcome.   

The move comes as supporters of President Donald Trump grapple with a narrow loss in a state they won four years ago by a sliver.  

As in other states, Wisconsin Republicans are alleging voter fraud but so far are not providing evidence of widespread problems that would take away President-elect Joe Biden’s victory.

The state Senate and Assembly’s committees on elections plan to hold a joint hearing next week on how the election was conducted, said Rep. Ron Tusler, a Harrison Republican and the chairman of the Assembly committee.

He said he would call Meagan Wolfe, the director of the state Elections Commission, to testify and plans to subpoena municipal clerks or others to force them to come before the committees.

It has likely been more than 50 years since Wisconsin lawmakers have issued subpoenas, according to nonpartisan researchers for the Legislature.

WaPo:

The Trump campaign also sought to temporarily stop counting some ballots in Detroit. It cited a GOP poll watcher who had said she had been told by an unidentified person that late mail ballots were being predated to before Election Day, so they would be considered valid.

The judge repeatedly asserted this was hearsay, but Trump campaign lawyer Thor Hearne sought to argue that it wasn’t — despite it having been someone who said they heard about something they weren’t personally involved in. He pointed to a vague note the poll watcher produced — which said “entered receive date as 11/2/20 on 11/4/20” — as evidence:STEPHENS: So I want to make sure I understand you. The affiant is not the person who had knowledge of this. Is that correct?HEARNE: The affiant had direct firsthand knowledge of the communication with the elections inspector and the document they provided them.STEPHENS: Okay, which is generally known as hearsay, right?HEARNE: I would not think that’s hearsay, Your Honor. That’s firsthand personal knowledge by the affiant of what she physically observed. And we included an exhibit which is a physical copy of the note that she was provided.

The two later returned to the point, after Stephens reviewed the note, and Stephens echoed Judge Diamond’s exasperation:STEPHENS: I’m still trying to understand why this isn’t hearsay.HEARNE: Well, it’s, it, I –STEPHENS: I absolutely understand what the affiant says she heard someone say to her. But the truth of the matter … that you’re going for was that there was an illegal act occurring. Because other than that I don’t know what its relevancy is.HEARNE: Right. I would say, Your Honor, in terms of the hearsay point, this is a firsthand factual statement made by Ms. Conoron, and she has made that statement based on her own firsthand physical evidence and knowledge –STEPHENS: “I heard somebody else say something.” Tell me why that’s not hearsay. Come on, now.HEARNE: Well it’s a firsthand statement of her physical –STEPHENS: It’s an out-of-court statement offered where the truth of the matter is [at-issue], right?

In a later written decision, Stephens slammed the argument as “inadmissible hearsay within hearsay.” And after the campaign appealed, Stephens rebuked it Monday for not including required documentation.

It is worth remembering that Republicans went to the United States Supreme Court on an emergency basis in both Pennsylvania and North Carolina raising the same theory: that the extension of the deadline for the receipt of absentee ballots was unconstitutional under the “independent state legislature” doctrine because it usurped the power of the state legislature. In PA, the state Supreme Court extended the time for the receipt of absentee ballots to Nov. 6, relying on the state Constitution. In NC, the state election board negotiated a settlement with those suing over voting rules to extend the deadline for the receipt of absentee ballots to Nov. 12, relying on power delegated to it by the legislature to do such things.

Although Republicans sought emergency relief (under a controversial theory) to stop the counting of the late arriving ballots in both states, they’ve dropped the claim in North Carolina but continue to pursue it after the election in Pennsylvania.

It is no mystery as to why: Republicans are ahead in North Carolina, and they want to keep counting votes to pad the lead of Trump and Senate candidate Tillis. But they are behind in PA and are seeking to stop the counting of those late arriving votes. (As Rick P. noted, the number of ballots at stake in PA is 10,000 not nearly enough to affect the outcome in the state).

Of course if the theory that Republicans were advancing is correct, it should apply equally to both states. This is true of lots of other theories too, like the crazy one advanced in the new federal case in PA that allowing people to vote by mail or in person is unconstitutional because different procedures apply to voting in these different ways.

WaPo:

A Pennsylvania postal worker whose claims have been cited by top Republicans as potential evidence of widespread voting irregularities admitted to U.S. Postal Service investigators that he fabricated the allegations, according to three officials briefed on the investigation and a statement from a House congressional committee.Follow the latest on Election 2020

Richard Hopkins’s claim that a postmaster in Erie, Pa., instructed postal workers to backdate ballots mailed after Election Day was cited by Sen. Lindsey O. Graham (R-S.C.) in a letter to the Justice Department calling for a federal investigation. Attorney General William P. Barr subsequently authorized federal prosecutors to open probes into credible allegations of voting irregularities and fraud before results are certified, a reversal of long-standing Justice Department policy.

But on Monday, Hopkins, 32, told investigators from the U.S. Postal Service’s Office of Inspector General that the allegations were not true, and he signed an affidavit recanting his claims, according to officials who spoke on the condition of anonymity to describe an ongoing investigation. Democrats on the House Oversight Committee tweeted late Tuesday that the “whistleblower completely RECANTED.”

Hopkins did not respond to messages from The Washington Post seeking comment through his social media accounts, family members and phone messages earlier this week. But in a YouTube video he posted Tuesday night, he denied recanting. “I’m here to say I did not recant my statements. That did not happen,” he said.

The reversal to investigators comes as Trump has refused to concede to President-elect Joe Biden (D), citing unproven allegations about widespread voter fraud in an attempt to swing the results in his favor. Republicans held up Hopkins’s claims as among the most credible because he signed an affidavit swearing that he overheard a supervisor instructing colleagues to backdate ballots mailed after Nov. 3.

The Trump campaign provided that affidavit to Graham, who in turn asked the Justice Department and FBI to launch an investigation…

Hopkins’s allegations, without his name, were first aired last week by Project Veritas, an organization that uses deceptive tactics to expose what it says is bias and corruption in the mainstream media. Hopkins agreed to attach his name to the allegations late last week. He was instantly celebrated by Trump supporters.

Project Veritas founder James O’Keefe on Saturday hailed Hopkins as “an American hero” on Twitter. A GoFundMe page created under Hopkins’s name had raised more than $136,000 by Tuesday evening, with donors praising him as a patriot and whistleblower. The fundraising page was removed by GoFundMe after this story was published Tuesday, a spokesman for the platform said.

“Your donations are going to help me in the case I am wrongfully terminated from my job or I am forced into resigning due to ostrizization [sic] by my co-workers,” the page states. “It will help me get a new start in a place I feel safe and help me with child support until I am able to get settled and get a job.”