The Sauce: False claims of electoral fraud and next steps

Normally, I’d post Lost in the Sauce today (technically, yesterday). However, I think it’s important to focus on the election issues first – I’d call this THE sauce. Later this week, perhaps Thursday, I’ll post the real Lost in the Sauce.


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What’s next

Each state will “certify” its results — between now and December 8. The Electoral College meets to “vote” on December 14. Congress meets in joint session to “count” the Electoral College’s votes on January 6.

Emily Murphy, administrator of the General Services Administration, is refusing to sign a letter allowing President-elect Joe Biden’s transition team to formally begin its work this week. Her approval is required to provide the transition with funding, as well as access to government officials, office space in agencies, and equipment.

A GSA spokesperson told The Hill, however, that Administrator Emily Murphy, a political appointee named to the post by Trump, is waiting to determine that “a winner is clear.”

“An ascertainment has not yet been made. GSA and its Administrator will continue to abide by, and fulfill, all requirements under the law,” the spokesperson added in a statement when asked if changes were forthcoming in the days ahead.

Attorney General William Barr issued a memo on Monday authorizing U.S. attorneys to open investigations into claims of voter fraud. Barr’s directive states that probes can be launched “if there are clear and apparently-credible allegations of irregularities that, if true, could potentially impact the outcome of a federal election in an individual State.”

…previous guidance from the Justice Department’s Election Crimes Branch that said prosecutors should not — in most instances — take overt steps in voter fraud or related investigations until after election results are in and certified. The guidance was designed to ensure that voters and state and local election officials, rather than the federal government, decide the results, and that, if prosecutors wanted to deviate from the norm, they would at least first have to consult with Public Integrity prosecutors and the Election Crimes Branch.

In protest of Barr’s directive, Richard Pilger – the longtime director of the Election Crimes Branch – stepped down from his position. In an email to colleagues, Pilger wrote that the new DOJ policy is “abrogating the forty-year-old Non-Interference Policy for ballot fraud investigation in the period prior to elections becoming certified and uncontested.”

Some worry that fraud found under Barr’s new policy, however insignificant, will give Republican state legislaures cover to directly appoint Trump-supporting electors to the Electoral College, overturning the state’s popular votes.

The legal theory that would allow state legislatures to go rogue and appoint electors without regard for the popular vote rests on an argument made by Chief Justice William Rehnquist in Bush v. Gore, for himself and two other justices. On this view, a legislature is unconstrained in its power to set the manner by which electors are selected—meaning that even after an election, the legislature could ignore the results and select a different slate altogether. (Lawfare)

The idea has been pushed by conservative radio host Mark Levin and Senator Lindsey Graham (clip), particularly regarding Pennsylvania. However, Pennsylvania Senate Majority Leader Jake Corman shut down the proposal, saying that state law makes it clear Pennsylvania must follow the popular vote.

Realistically, it is very unlikely an attempt to override the popular vote will succeed. The point, as with many of the electoral lawsuits brought by Trump, is to undermine faith in the results and in Biden’s presidency. However, in order to prepare for all possibilities, we can explore what would happen if a state sent illegitimate Trump-supporting electors to the final count conducted by Congress:

On Jan. 6, when the roll call arrives at a state with dueling slates of electors, House Democrats would insist on certifying those pledged to Biden…Senate Republicans could seek to validate the Trump electors. One possibility is that Vice President Pence would assert his prerogative, as president of the Senate, to control the counting of electoral votes and determine which slate is valid…If that were to occur, Democrats presumably would attempt to shut down the entire process until Republicans acquiesced. The Electoral Count Act explicitly states there is no moving on to the next state in line until any dispute is resolved, so Democrats can derail the process.

Pence might try to continue with the vote, but the House could then refuse to participate in the joint session any further, which would shut down the counting. While the stalemate persisted, House Speaker Nancy Pelosi (D-Calif.) could claim the right to serve as acting president starting on Jan. 20 for as long as Senate Republicans fail to recognize Biden’s status as president-elect based on the popular vote in the relevant states.

Misinformation and threats

Rightwing social media spread a list of over 14,000 alleged registered voters in Michigan who are dead, yet managed to cast a vote. CNN examined a subset of the list consisting of 50 entries, finding that 37 are actually dead and did not cast a vote; 5 are alive and voted; 8 are alive and didn’t vote. In other words, no fraud was discovered. Furthermore, some state registration systems indicate a missing date of birth by adopting filler dates, such as 01/01/1900, 01/01/1850, or 01/01/1800.

  • President Trump plans to brandish obituaries of people who supposedly voted but are dead — plus hold campaign-style rallies — in an effort to prolong his fight against apparent insurmountable election results

Facebook took down a widespread network of pages tied to President Trump’s former chief strategist Stephen Bannon for pushing misinformation about voter fraud and delegitimizing election results. The pages include “a Group that was originally named ‘Stop the Steal’ which later became ‘Gay Communists for Socialism’ and misled people about its purpose using deceptive tactics.”

  • Twitter permanently suspended Bannon’s Twitter account after he suggested last week that Dr. Anthony Fauci and FBI Director Christopher Wray should be beheaded.

Prominent Trump supporters including Bannon and George Papadopoulos, have been pushing a baseless conspiracy that votes were changed in Biden’s favor using a deep-state supercomputer named “Hammer” and a computer program named “Scorecard.”

“I think there are any number of things they need to investigate, including the likelihood that three percent of the vote total was changed in the pre-election voting ballots that were collected digitally by using the Hammer program and the software program called Scorecard,” Sidney Powell, the attorney for former Trump national security adviser Michael Flynn, said Friday in an appearance on Fox Business. “That would have amounted to a massive change in the vote.”

A texting company run by Gary Coby, the Trump campaign’s digital director, sent out thousands of targeted, anonymous text messages urging supporters to rally where votes were being counted in Philadelphia on Thursday, falsely claiming Democrats were trying to steal the presidential election. The company, Opn Sesame, has earned millions as a hub of text-messaging efforts for the Trump campaign and the Republican National Committee this election cycle

“ALERT: Radical Liberals & Dems are trying to steal this election from Trump! We need YOU!” the text said, directing recipients to “show your support” on a street corner near the Philadelphia Convention Center where votes were being counted and tensions were running high.

  • Note: See section below, “Trump’s game,” for more on Trump-connected emails and text messages.

Later Thursday night, two men were arrested near the convention center for carrying loaded handguns without a permit. There are indications they believed fake ballots were being counted there, suggesting that they were motivated by rightwing disinformation about election fraud. Antonio LaMotta, 61, and Joshua Macias, 42, both of Chesapeake, Virginia, had over 160 rounds of ammunition in a car adorned with Qanon stickers.

There has been a TON of misinformation over the past week. NYT has kept a fact-checking list of the most prevalent false claims.

Trump lawsuit updates

The following cases were brought since Election Day:

In Pennsylvania, a federal judge dismissed a Trump campaign lawsuit to compel Philadelphia election officials to stop counting ballots. In another case, a state judge ruled in the campaign’s favor, allowing campaign officials to observe the Philadelphia process from a six-foot distance.

Ongoing litigation in PA:

  • On Monday, the Trump campaign filed a new lawsuit against Pennsylvania’s secretary of state and seven counties, seeking an injunction prohibiting them from certifying the state’s results of the 2020 election. The campaign brings a multitude of complaints – from mismanaged mail voting to a blockade of observers. Rick Hasen, an election law expert from the University of California in Irvine, said the lawsuit is “extremely unlikely” to change the outcome in Pennsylvania or the national outcome favoring Biden.
  • A case to compel Pennsylvania Secretary of State Kathy Boockvar and all 67 counties to impose an earlier date for voters to show proof of identification if it was not on their initial ballots. A state judge ordered officials to segregate provisional ballots from voters with deficiencies on their mail-in ballots.
  • A case to compel the Montgomery County Board of Elections to stop counting mail-in-ballots. The Trump campaign and RNC allege that the board of elections was counting 600 ballots that had not been placed in secrecy envelopes and was therefore not complying with requirements.
  • A case to intervene in an already existing dispute before the U.S. Supreme Court about whether ballots the state received after 8 p.m. on Election Day should count. Ballots arriving after Election Day have already been segregated and have not been counted.

In Nevada, the Trump campaign has brought two lawsuits, both rejected by the courts. The first case: a federal judge refused an injunction on the automated signature-verification machines used in Clark County. The second case: a state judge denied the campaign and RNC’s request to halt the counting process in Clark County until they could observe the process.

In Michigan, conservatives have lost both claims it tried to bring in court since Election day. The first: a Court of Claims judge denied a Trump campaign request to halt the counting of absentee ballots, on the grounds that campaign officials had not been given access to observe the process as required by state law. The second: A Wayne County Circuit Court judge denied a conservative group’s request to halt the certification of election results in Detroit.

  • Trump’s lawyers tried to appeal the ruling in the first case, but it botched its initial attempt at a filing.

In Georgia, the Trump campaign has filed one lawsuit, seeking to disqualify just 50-some ballots. The campaign claimed the ballots arrived late but a judge ruled against them, saying Trump lawyers provided no evidence.

In Arizona, the Trump campaign and RNC are involved in an ongoing case alleging “up to thousands” of votes weren’t counted in Maricopa County due to irregularities (e.g. selecting more than one person in a single race). However, Deputy Maricopa County Attorney told a judge that only 180 of the 165,860 cast in person on Election Day had such potential errors.

Trump’s game

What is the point of these lawsuits and claims of election fraud? (1) It undermines Biden’s presidency; (2) It soothes Trump’s ego; (3) Trump is using it as an opportunity to fundraise; (4) Republicans hope it will keep their base fired up for the two Georgia Senate races in January.

At least half of donations to the Trump campaign’s “election defense” fund will go toward paying down debt for the president’s campaign. A separate fundraising effort by the “Trump Make America Great Again Committee” states that 60% of contributions will go toward campaign debt while 40% goes to the RNC.

Archive: This Election isn’t over yet. We still have a long way to go and I need to know that I can count on you. I’m putting together an Election Defense Task Force that will be made up of my STRONGEST defenders. I’m calling on YOU to step up and join.

Please contribute $5 IMMEDIATELY to join the Election Defense Task Force and to increase your impact by 1000%.

Furthermore, there is no evidence that donations are ever matched at any percentage, let alone 1000%. As WaPo reports, this is likely another instance of Trump swindling his supporters:

In terms of legality, experts generally agree that false statements intended to flatter donors would be deemed harmless rhetoric in court. While lying about a donation match could legally be considered consumer fraud, there isn’t a specific campaign law against it.

Trump also recently formed a leadership PAC, “a federal fund-raising vehicle that will potentially let him retain his hold on the Republican Party even after he leaves office.” A leadership PAC could accept donations from an unlimited number of people and from other PACs.

A leadership PAC could spend an unlimited amount in so-called independent expenditures to benefit other candidates, as well as fund travel, polling and consultants. Mostly, it would almost certainly be a vehicle by which Mr. Trump could retain influence in a party that has been remade largely in his image over the past four years.

To a similar end, Trump has begun telling people that he may run for president again in 2024. This will keep him relevant and help him retain control over the GOP in the years to come. Combined with the creation of a new PAC and claims of being cheated, it appears that Trump wants to maintain a flow of cash and support during Biden’s presidency.