Opinion | There’s Still a Loaded Weapon Lying Around in Our Election System – The New York Times

Mr. Pildes is an author of the casebook “The Law of Democracy: Legal Structure of the Political Process.”

Credit…Tasos Katopodis/Getty Images

“The 2020 election revealed longstanding fractures in the foundation of our system for conducting presidential elections. Before these lead to an earthquake in a subsequent presidential election, we need to shore up that foundation.

The single most dangerous threat the election exposed was the prospect of legislatures directly appointing a state’s electors and overriding the vote of the people in that state. No state legislature has attempted to do this since at least the Civil War. But in the run-up to the 2020 election, this seemed the most likely means that might circumvent the voters and subvert the election. This concern has been proven warranted: After the Trump campaign’s postelection lawsuits failed around the country, its strategy was precisely to get state legislatures in key swing states to appoint the electors themselves.

Indeed, President Trump continues to pursue that strategy even now — he reportedly twice called the Republican speaker of the Pennsylvania House of Representatives in recent days — despite these states having legally certified Joe Biden as the winner of their state’s popular vote.

There is no legal basis for what the president is urging, but it calls attention to a previously obscure provision in federal election law. This provision, known as the “failed election” provision, lies around like a loaded weapon. It is the only place in federal law that identifies circumstances in which, even after a popular vote for president has been taken, a state legislature has the power to step in and appoint electors.”

Trump lawyers suffer embarrassing rebukes from judges over voter fraud claims – The Washington Post

November 11, 2020 at 11:53 a.m. EST

“By now, it’s well-established that most of the arguments put forward by President Trump’s reelection campaign in its challenge of the results of the 2020 election are baseless and highly speculative. Even Trump allies, as The Washington Post reported late Tuesday, acknowledge the apparent futility of the effort. Others have reasoned that there’s no harm in going through the motions, with one anonymous GOP official asking, “What’s the downside for humoring him” for a little while?

But as scenes in courtrooms nationwide in recent days have shown, there is indeed a downside for those tasked with pursuing these claims. Repeatedly now, they have been rebuked by judges for how thin their arguments have been.

The most famous scene came in Pennsylvania, where a Trump lawyer strained to avoid acknowledging that their people were, in fact, allowed to observe the vote-counting process in Philadelphia:

At the city’s federal courthouse on Thursday evening, attorneys for Trump asked a judge to issue an emergency order to stop the count, alleging that all Republican observers had been barred.
Under sharp questioning from Judge Paul S. Diamond, however, they conceded that Trump in fact had “a nonzero number of people in the room,” leaving Diamond audibly exasperated.
“I’m sorry, then what’s your problem?” asked Diamond, who was appointed to the federal bench by President George W. Bush. Denying Trump’s request, Diamond struck a deal for 60 observers from each party to be allowed inside.
At one point on Friday afternoon, 12 Republican observers and five Democrats were watching the count, according to a ballot counter who was working.

After that “nonzero” answer, Diamond pressed the Trump campaign lawyer to be more explicit — and he suggestively invoked their standing with the bar: “I’m asking you as a member of the bar of this court: Are people representing the plaintiffs in the room?” The lawyer responded more directly: “Yes.” By the end of the hearing, Diamond invoked his right to make sure lawyers in his courtroom acted in good faith.

Another Trump lawyer, Jonathan S. Goldstein, was also grilled by a Pennsylvania judge this week. Under questioning, he acknowledged that, contrary to Trump’s claims about rampant voter fraud, he wasn’t alleging fraud in the 592 ballots he sought to disqualify in Montgomery County, Pa.

Again, Trump’s lawyer strained to avoid directly answering the question but was ultimately forced to acknowledge it:

THE COURT: In your petition, which is right before me — and I read it several times — you don’t claim that any electors or the Board of the County were guilty of fraud, correct? That’s correct?
GOLDSTEIN: Your Honor, accusing people of fraud is a pretty big step. And it is rare that I call somebody a liar, and I am not calling the Board of the [Democratic National Committee] or anybody else involved in this a liar. Everybody is coming to this with good faith. The DNC is coming with good faith. We’re all just trying to get an election done. We think these were a mistake, but we think they are a fatal mistake, and these ballots ought not be counted.
THE COURT: I understand. I am asking you a specific question, and I am looking for a specific answer. Are you claiming that there is any fraud in connection with these 592 disputed ballots?
GOLDSTEIN: To my knowledge at present, no.
THE COURT: Are you claiming that there is any undue or improper influence upon the elector with respect to these 592 ballots?
GOLDSTEIN: To my knowledge at present, no.”

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. Connarn, 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 asserted, right?

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

“I regret to inform you that your submission is defective,” the court wrote said, outlining the missing attachments.

Another of the Trump team’s claims crumbled rather quickly in Georgia.

In Chatham County, as in Michigan, the Trump campaign cited supposed evidence that 53 late ballots may have been predated so they could be counted. Except two witnesses they called acknowledged under oath that they didn’t know whether the ballots were received after the deadline. And two others for the local board of elections testified that they were, in fact, received on time.

Judge James Bass dismissed the case in a one-sentence, eight-word ruling, saying, “I’m denying the request and dismissing the petition” and abruptly adjourned the hearing. He then elaborated in a written opinion, saying that “the Court finds that there is no evidence that the ballots referenced in the petition were received after 7:00 p.m. on election day, thereby making those ballots invalid. Additionally, there is no evidence that the Chatham County Board of Elections or the Chatham County Board of Registrars has failed to comply with the law.”

The common thread running through all of these is that Trump’s lawyers are regularly offering a significantly more watered-down version of Trump’s claims about rampant voter fraud — because they, unlike Trump, have to substantiate their claims. And as these exchanges show, it’s a rather thankless task that can quickly land them on a judge’s bad side.”    -30-

Source: Trump lawyers suffer embarrassing rebukes from judges over voter fraud claims – The Washington Post

Opinion | What’s Not the Matter With Georgia? – By Paul Krugman – The New York Times

By 

Opinion Columnist

Credit…Ben Gray/Atlanta Journal-Constitution, via Associated Press

“Right now, we all have Georgia on our minds. It’s probably going to end up called for Joe Biden; his lead is razor-thin, but most observers expect it to survive a recount. And the January runoff races in Georgia offer Democrats their last chance to take the Senate.

Beyond the immediate electoral implications, however, the fact that Democrats are now competitive in Georgia but not in Ohio, which appears to have become Trumpier than Texas, tells you a lot about where America is heading. In some ways these changes in the electoral map offer reason for hope; but they also suggest looming problems for U.S. democracy.

How did Georgia turn faintly blue? As The Atlantic’s Derek Thompson wrote, in a phrase I wish I’d come up with, the great divide in American politics is now over “density and diplomas”: highly urbanized states — especially those containing large metropolitan areas — with highly educated populations tend to be Democratic.

Why this particular partisan association? Think about the longer-term political strategy of the modern G.O.P. Republican economic policy is relentlessly plutocratic: tax cuts for the rich, benefit cuts for everyone else. The party has, however, sought to win over voters who aren’t rich by taking advantage of intolerance — racial hostility, of course, but also opposition to social change in general.

But both living in large, diverse metropolitan areas and being highly educated seem to make voters less receptive to this strategy. Indeed, many big-city and highly educated voters seem repelled by G.O.P. illiberalism on social issues — which is why so many affluent Americans on the coasts back Democrats even though Republicans might reduce their taxes.

In practice, density and diplomas tend to go together — an association that has grown stronger over the past few decades. Modern economic growth has been led by knowledge-based industries; these industries tend to concentrate in large metropolitan areas that have highly educated work forces; and the growth of these metropolitan areas brings in even more highly educated workers.

Hence the transformation of Georgia. The state is home to greater Atlanta, one of the nation’s most dynamic metropolises, which now accounts for 57 percent of Georgia’s population. Atlanta has drawn in a growing number of college-educated workers, so that at this point the percentage of working-age adults with bachelor’s degrees is higher in Georgia than in Wisconsin or Michigan. So at some level it shouldn’t be surprising that Georgia apparently joined the “blue wall” in securing the presidency for Biden.

But if there’s one thing I hope Democrats have learned these past dozen years, it is that they can’t simply count on changing demography and growing social liberalism to deliver election victories. Red-state Republicans have fought tooth and nail to hold power — not by moderating their policies, but through gerrymandering and vote suppression. And Democrats need to do what they can to fight back.

Which is why Georgia’s blue shift is in one way a reason for hope.

Why, after all, did Biden win Georgia even as he was losing North Carolina, another relatively well-educated state with growing knowledge industries? The answer, in two words: Stacey Abrams.”

Opinion | Trump Calls on Extremists to ‘Stand By’ – By Nicholas Kristof – The New York Times

By 

Opinion Columnist

President Trump didn’t hurt Joe Biden in Tuesday’s debate, but he badly damaged our country.

“Trump harmed the United States in three ways, reminding us that the biggest threat to America comes not from desperate migrants, not from “socialists” seeking universal health care and not from “anarchists” in the streets — but from the White House itself.

The first way in which Trump damaged the country was in his salute to violent extremists.

“Are you willing tonight to condemn white supremacists?” Chris Wallace, the Fox News anchor who moderated the debate, asked Trump. Trump initially dodged the question but finally asked petulantly, “Who do you want me to condemn?”

Biden suggested the Proud Boys, a militant group that is fervently pro-Trump.

“Proud Boys, stand back and stand by,” Trump declared.

Stand by?

The Proud Boys, founded in 2016, are part of what the Southern Poverty Law Center calls “a fascistic right-wing political bloc.” The Anti-Defamation League compares it to a gang. The Proud Boys’ founder once said, “I cannot recommend violence enough,” and its members have brandished guns, committed criminal assaults and engaged in rioting. Facebook, Twitter, YouTube and Instagram have banned Proud Boys.”

The Attack on Voting in the 2020 Elections – The New York Times

“On an October morning four years ago, eight young staff members at the Indiana Voter Registration Project in Indianapolis were planning their final steps before a closely contested presidential election. In recent weeks they had registered 45,000 new voters, most of whom were Black and Latino, and they were on track to enlist 10,000 more before Election Day. Their work had gone smoothly for the most part, but several canvassers had submitted applications with names that appeared to have been made up or drawn from the phone book, most likely to create the appearance that they were doing more work than they had actually done. That was illegal — submitting a false registration is a felony under Indiana law — and also frustrating. A made-up name was not going to help anyone vote. The staff members stopped using the suspect canvassers, but they couldn’t simply trash the faulty registrations: State law required them to file every application they collected, even if they had false names or serious mistakes. So they carefully identified all the applications with potentially false names, along with several hundred more with incorrect addresses or other simple errors, so that local election clerks would know they might present a problem.

Despite their efforts at transparency, though, Indiana’s secretary of state, Connie Lawson, used these faulty registrations as evidence of wrongdoing. She warned all the state’s county elections clerks that a group of “nefarious actors” who were going “by the name of the Indiana Voter Registration Project” had “forged voter registrations.” It was a gross exaggeration, but the project hired a lawyer to visit local election board offices and assure registrars that they were following the proper procedures. Craig Varoga, a longtime Democratic operative who runs Patriot Majority USA, which funded the Indiana project, told reporters that the fraud claims were false. Lawson was a close ally of Mike Pence, the state’s former governor who was then Donald Trump’s running mate. “We believe she is using government resources,” Varoga said, “to discredit and impugn the entire process.”

But the staff members did not expect anything like what came that October morning. Around 10:45, five unmarked state police cars and a mobile cybercrimes unit quietly approached their building. A staff member heard a knock on the back door. Within minutes, troopers were rounding up the staff members inside the office, announcing that they had a warrant to search all their computers, cellphones and records. When one staff member, a young Black man, refused to give up his phone, the troopers handcuffed him — for “acting like a hoodlum,” he later said in a sworn affidavit. Within a couple of hours, the police were heading out the door with computers and phones as a television news crew captured the scene.”

David Lindsay: This is a long piece recording the effort of the GOP to use voter fraud to suppress voter participation. I hope someone writes a good summary. It is a horrifying account. Especially the business suit mob riot that stopped the recount of 20,000 ballots in Florida, and probably cost Al Gore his presidency. Those men in the suites were GOP operatives. On Trump’s first day as president, he started a task force on voter fraud (for voter suppression).

Efforts to Channel Protests Into More Votes Face Challenges in Kenosha – By John Eligon – The New York Times

“KENOSHA, Wis. — Gerald Holmes, a forklift operator from Kenosha, Wis., was so passionate about the importance of the election four years ago that he drove people without rides to the polls. But this year, Mr. Holmes says he is not even planning to vote himself.

The outcome in 2016, when Wisconsin helped seal President Trump’s victory despite his losing the popular vote and amid reports of Russian interference, left Mr. Holmes, 54, deeply discouraged.

“What good is it to go out there and do it?” he said. “It isn’t going to make any difference.”

As protests have unfolded across the country this summer over the death of George Floyd and the police treatment of Black people, activists and Democratic leaders have pleaded with demonstrators to turn their energy toward elections in November.

A block party on Tuesday honoring Jacob Blake, a Black resident of Kenosha who was left paralyzed after being shot in the back by a white police officer, included voter registration booths near where the shooting occurred. And Joseph R. Biden Jr., the Democratic nominee for president, was scheduled to visit Kenosha on Thursday, two days after Mr. Trump appeared in the city in the wake of unrest over the shooting.

But people like Mr. Holmes reflect the challenges that Democrats face as they try to channel their anger over police violence into voting. In interviews with more than a dozen Black residents in the Kenosha area, many said they were outraged over the shooting of Mr. Blake, but some said they had grown dispirited and cynical about the political system. The shooting was further evidence, some residents said, that decades of promises from politicians have done little to alleviate wide racial inequalities or stem police abuses, leaving them seeing little value in one more election.

“Let’s say I did go out and vote and I voted for Biden,” said Michael Lindsey, a friend of Mr. Blake’s who protested for several nights after the shooting. “That’s not going to change police brutality. It’s not going to change the way the police treat African-Americans compared to Caucasians.”

Mr. Lindsey, 29, who lives just outside of Kenosha, said he had never voted in a presidential election and did not plan to start this year, as much as he despises Mr. Trump and is fed up with feeling like he has to live in fear of the police because he is Black.

Many factors have slowed voting. The state’s high rate of incarceration of Black people — among the highest in the nation — strips many African-Americans of their voting rights. Wisconsin’s voter identification law and other strict regulations, such as a shortened early voting period and longer residency requirements compared with 2016, also present major hurdles.”

Opinion | How Has the Electoral College Survived for This Long? – By Alexander Keyssar – The New York Times

By 

Mr. Keyssar is a professor of history and social policy at Harvard and the author of “Why Do We Still Have the Electoral College?”

“As our revived national conversation on race has made clear, the legacies of slavery and white supremacy run wide and deep in American society and political life. One such legacy — which is particularly noteworthy in a presidential election season — has been the survival and preservation of the Electoral College, an institution that has been under fire for more than 200 years. Our complicated method of electing presidents has been the target of recurrent reform attempts since the early 19th century, and the politics of race and region have figured prominently in their defeat.

It is, of course, no secret that slavery played a role in the original design of our presidential election system — although historians disagree about the centrality of that role. The notorious formula that gave states representation in Congress for three-fifths of their slaves was carried over into the allocation of electoral votes; the number of electoral votes granted to each state was (and remains) equivalent to that state’s representation in both branches of Congress. This constitutional design gave white Southerners disproportionate influence in the choice of presidents, an edge that could and did affect the outcome of elections.

Not surprisingly, the slave states strenuously opposed any changes to the system that would diminish their advantage. In 1816, when a resolution calling for a national popular vote was introduced in Congress for the first time, it was derailed by the protestations of Southern senators. The slaveholding states “would lose the privilege the Constitution now allows them, of votes upon three-fifths of their population other than freemen,” objected William Wyatt Bibb of Georgia on the floor of the Senate. “It would be deeply injurious to them.”

What is far less known, or recognized, is that long after the abolition of slavery, Southern political leaders continued to resist any attempts to replace the Electoral College with a national popular vote. (They sometimes supported other reforms, like the proportional division of each state’s electoral votes, but those are different strands of a multifaceted tale.) The reasoning behind this opposition was straightforward, if disturbing. After Reconstruction, the white “Redeemer” governments that came to power in Southern states became the political beneficiaries of what amounted to a “five-fifths” clause: African-Americans counted fully toward representation (and thus electoral votes), but they were again disenfranchised — despite the formal protections outlined in the 15th Amendment, ratified in 1870, which stated that the right to vote could not be denied “on account of race, color, or previous condition of servitude.” White Southerners consequently derived an even greater benefit from the Electoral College than they had before the Civil War.”

Opinion | Bring On the 28th Amendment – By Richard L. Hasen – The New York Times

By 

Mr. Hasen is the author of “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy.”

Credit…Audra Melton for The New York Times

“What if we made voting an agent of equality, not inequality? And how can we get there?

If you are a college student or a working recent high school graduatepoorLatino, or someone who moves more frequently, you are less likely to vote. Seniors are much more likely to vote than young people, in some elections at twice their rate. Those with college degrees vote in higher numbers than the less educated. Minority voters are more likely to wait longer in line to vote in person, sometimes for hours, and they, young people, and first-time voters are more likely to have an absentee ballot rejected for nonconformity with technical rules. Poor voters are less likely to have the time off work to vote at all, much less wait in a long line to vote. Voters in big cities, who tend to be younger, poorer and browner, have coped with more serious election problems than others in voting in person and by mail during our coronavirus-laden primary season, like the voters in Milwaukee voters who saw 175 out of 180 polling places closed during the April 7 Wisconsin primaries.

In a democratic system, we expect our elected officials to be responsive to the views and interests of the voters. If the universe of voters — and, of course, campaign donors — is skewed toward older, wealthier, better educated whiter voters, political decisions will be as well. We need equality in voting rights and turnout to assure responsive representation and social policy that reflects everyone’s needs, not just those most likely to turn out with their votes and dollars.

Let’s start with the causes of the problem. The Covid-19 pandemic has laid bare three pathologies with how we protect voting rights in the United States, and why the skew in voter turnout remains persistent.”

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