Rick Hasen Profile picture
24 Sep, 10 tweets, 4 min read
All of a sudden from @BartonGellman's excellent @TheAtlantic piece, people are learning that we only get to vote for President because state legislatures give voters that right, and they can take it away. The risk of this happening in 2020 is not new but also not likely. /1
Here's @mjs_DC writing about this issue in March, and I've picked up on this theme in a number of my writings about the risks of the election with extensive normbreaking and constitutional hardball. /2
The fact that we don't have a direct right to vote for President in the Constitution is a travesty (just like the potential for faithless electors to change electoral outcomes). In the long run we need constitutional change. /3
But what about the short term risk that Republican legislators in key swing states would take away the right to vote for President and appoint electors directly? It's not a big risk (but it is still A risk) for a few reasons. /4
First, states have ALREADY started voting, and that means state legislatures have already chosen the "manner" for choosing presidential electors this season. I don't see how state legislators take it back now legally. /5
The play instead is more complex, and I lay it out in my @Slate piece yesterday. The argument of the legislatures would be that vote count is SO uncertain/marred by fraud that we don't know what the voters want so we are choosing electors directly. /6

This play may not work for a number of reasons.
1. Some states have Dem governors who would reject the move. There's a dispute what role governors play here, but better argument is they can veto (affecting a state like PA). See fn 13 of this article /7 liebertpub.com/doi/pdf/10.108…
2. Even in states with unified control like Florida, Florida legislators would incur the wrath of voters and national protests (and potential violence) for seeking to disenfranhchise voters in this way. And they'd be calling their own elections into question. /3
3. If state election officials say Biden won but Fla. legislature said they were sending their own slate of electors for Trump, this would potentially end up in Court, or in the (likely Democratic) House of Representatives, triggering not necessarily a Trump win but a crisis. /9
The bottom line: The Gellman scenario is extremely unlikely. But it's not impossible. And it is just one of many ways that the 2020 elections can go south (as described in that @slate piece). We are dealing with a low risk of a real catastrophe, and that deserves attention. 10/10

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More from @rickhasen

29 Nov
You've got to be kidding me.
At the appellate level and Supreme Court level, the appointing judge is the best predictor of how a judge/justice will vote in the highest profile cases.
Not because they are hacks, but because they were chosen for their genuinely held ideology.
I can predict with near certainty how almost every Supreme Court Justice will vote in nearly every election case. And my first rule of thumb is which President appointed the Justice.
*the appointing President
Read 13 tweets
25 Nov
#ELB: Donor Sues True the Vote Claiming He Gave $2.5 Million to Fund Jim Bopp Litigation to Expose Fraud in Battleground States to Help Trump, But the Group Withdrew Their Complaints and Did Nothing. He Wants a Refund. electionlawblog.org/?p=119080
The complaint alleges that True the Vote through Bopp finally agreed to give back only $1 million of the $2.5 million to fund absurd voter fraud litigation, in exchange for an agreement not to sue for the rest.
The complaint also alleges that True the Vote withdrew its four lawsuits filed by Bopp in consultation with the Trump campaign.
The reason for the withdrawal have not been made clear publicly.
Read 4 tweets
23 Nov
First thing to note about the Trump campaign brief in the 3rd Circuit: it throws Trump's prior counsel under the bus for "incorrectly omitt[ing] numerous allegations and counts"
Key point: the Trump brief says it is not trying to disenfranchise 6.8 million PA voters, "just" throw out about 70,000 votes. BUT it also asks ultimately for court to void election, and let PA legislature choose electors. That IS disenfranchising 6.8 million PA voters.
The brief is procedurally weird, asking casually for a preliminary injunction or temporary restraining order. Trump campaign should be asking for an injunction pending appeal if it wants preliminary relief. But it doesn't. It wants remand to reconsider proposed amended complaint
Read 10 tweets
21 Nov
#ELB: Breaking: In Total Loss for Trump Campaign in Its Most Major Remaining Election Case, Federal Court in Pennsylvania Dismisses Case and Denies Motion to File Amended Complaint [link to opinion] electionlawblog.org/?p=118942
The federal court judge just EXCORIATES the Trump campaign for seeking to disenfranchise nearly seven million Pennsylvania voters with SHODDY legal arguments. We told you it would be this way:
From the judge on the merits: "Plaintiffs’ only remaining claim alleges a violation of equal protection. This claim, like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent."
Read 14 tweets
18 Nov
The Trump Campaign has filed its proposed Second Amended Complaint in the PA federal voting case. It's not much different than the earlier one and seeks the same relief. courtlistener.com/recap/gov.usco…
They have tried to restore the claims arguing that the legislature and Secretary of State usurped the power of the state legislature under the Elections and Elector clauses, something they had abandoned given a new 3rd Circuit has saying they had no standing.
At bottom they are asking for the federal court to throw out the votes of millions of Pennsylvania voters and declare Trump the winner of the election (or let the legislature pick Trump). This is not a thing.
Read 10 tweets

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