President-Elect Joe Biden

Apocrypha goes, at the close of the Constitutional Convention of 1787, Benjamin Franklin was queried as he left Independence Hall on the final day of deliberation. In the notes of Dr. James McHenry, one of Maryland’s delegates to the Convention, a lady asked Dr. Franklin “Well Doctor what have we got, a republic or a monarchy.” Franklin replied, “A republic . . . if you can keep it.”

Yesterday, went along way to keeping it.

Our electors voted and confirmed that Joe Biden is the President-Elect of the United States of America.  As expected, the outcome was Biden 306 electoral votes to Trump's 232.  No surprises, no changes.

This should be the final confirmation that Joe Biden won the 2020 presidential election.  This should be the end to the claims of voter fraud, stealing the election, or that Donald Trump is the rightful winner.  

But predictably it's not.  

The tweeter in chief has been very active today proclaiming that he won and all the "evidence" of fraud that he can point to.  I’ve even seen posts of the latest scheme, the latest hope to keep the presidency. It involves congressmen challenging the vote confirmation on January 6 and essentially changing the vote of the electors in order to hand it to Donald Trump. Make no mistake, it would be overwhelming the will of the people to steal the election for Trump. A coup. 

Thankfully, at every turn, we’ve seen our process still works. That our republic is secure and maintained by individuals who value country over party. Republican attorneys-general, Secretaries of State, and justices who are willing to buck their party and leaders expectations to maintain what the evidence has shown all along, that we had a fair and free election. And that Joe Biden was duly elected by the people of this great country. 

While we have seen congressmen that have greatly tested that truth, I expect when it matters, when it is their turn to uphold their oaths, our congressmen will do the same, despite their bluster. At least that is my prayer. 

Today, we’ve seen how resilient and how fragile our republic is. 

It’s our job to keep it. 

Ken Paxton, Texas, and the Definition of a Frivolous Lawsuit

UPDATE: Supreme Court summarily rejected the Texas motion on Friday evening December 11, 2020

Long post, one again I wish didn't have to be addressed.

As if the craziness surrounding this election couldn't get sadder, Texas Attorney General Ken Paxton filed suit Tuesday in the United States Supreme Court to invalidate presidential election results in Pennsylvania, Georgia, Wisconsin, and Michigan.  The filing argues that those states used the coronavirus pandemic as an excuse to unlawfully change their election rules “through executive fiat or friendly lawsuits, thereby weakening ballot integrity,” and that any electoral college votes so cast could not be counted.  According to the suit, this would make the election results in those states unlawful and should be declared unconstitutional.  In the days since Texas filed suit, eighteen other states have joined Texas by filing an amicus brief in support of the lawsuit, as well as the president himself, and 106 House Republicans.  And as if 2020 could not get weird enough, two pseudo-states, New California and New Nevada, have joined with amicus briefs.  These pseudo-states are movements in the two states to form new states from rural counties, separating them out from the urban counties (or separating red from blue). 

It's important to underscore that this lawsuit is the very definition of frivolous.  It's political theater writ large, in the form of a baseless lawsuit.  It's the very latest in baseless lawsuits that Trump's team and supporters have made.  Or as election law expert Richard Hasen put it to NPR, "This is a press release masquerading as a lawsuit. ... What utter garbage. Dangerous garbage, but garbage."  One tell, can be found in who is filing the suit.  Ken Paxton, the Texas Attorney General filed, instead of the Texas Solicitor General.  For the uninitiated, the Solicitor General would typically represent and defend the interests of Texas in Supreme Court litigation.  Texas Solicitor General Kyle D. Hawkins, so far, has kept his distance from the litigation.  Likewise, Trump's brief was not signed by the United States Solicitor General or any other Department of Justice Official, but rather John Eastman, a conservative law professor at Chapman University, so Trump could appear in his "personal capacity."

There are other major issues with the lawsuit.

First, the suit will have standing problems, meaning Texas really has no right to sue.  There is no national election process, even for president.  What we have is a system of state elections that are run and managed completely by the states.  This means, Texas has no real say or no injury from how Georgia runs its election, for example.  Combine this with the fact that states must ask for and receive permission to sue other states from the Supreme Court, and you have an enormous uphill battle for the suit to be heard.  The most likely outcome will be that the Supreme Court will simply refuse to hear the case in an unanimous decision with no other comment, just like the outcome of Trump's lawsuit against Pennsylvania.

Second, the Supreme Court really has no authority to move the date the Electors meet and vote for the Electoral College.  That power is explicit in the United States Constitution, Article II, Section 1.  "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."  And Congress has set December 14.  Given the time frame of the case, and this impending date, it makes the suit more of final "Hail Mary" attempt to derail the vote, than a legitimate suit.  Especially given the Supreme Court can take forever to vote on these motions.  Texas filed a similar suit against California in February regarding a California law banning state-sponsored travel to states deemed discriminatory against LGBTQ people.  The Supreme Court has, as of yet, not voted on whether or not it would hear that motion.  It would not be surprising for the Supreme Court not to have made any determination before the electors vote on Monday, and after they vote, the Court may view the motion as moot.

It's also pretty clear the case was thrown together hastily.  Paxton in his brief has misstated the number of electors at stake and other simple math mistakes, misquoted Justice Neil Gorsuch, contains circular logic regarding "expert" statistical analysis, and otherwise relies on the same innuendo and conjecture that the previous Trump lawsuits have used, so far to no avail.

To drive home that last point, Trump is 1 and 55 in court to date.  The avalanche of lawsuits that the Trump team has filed have all fizzled out but one.  It's important to note here that they have all largely been dismissed at the outset, at the very first opportunity for frivolous lawsuits to be dismissed.  After the first defendant's motion to dismiss.  This is because there is no there there.  The Trump team has yet to provide substantiated evidence of their allegations.  Their attorneys have even gone so far as to avoid even naming a cause of action like fraud - meaning they refuse to accuse that actual fraud has been committed, but rather raise the presumption that fraud could have been committed.  This is so the attorneys filing aren't disbarred.  Trump's one victory was pyrrhic.  He won a victory regarding the Pennsylvania election to prevent the mail in ballots received after November 9 from being counted, which the state's Secretary of State had already agreed to do.

I'm including a better explanation of the timing of Trump's losses below from a friend from law school, in which she outlines the initial filing process and the point at which his cases are being dismissed.  Why it matters, emphasis mine.

"It's clear to me after looking at Facebook that a quick legal lesson is in order for those who are confused about Trump's lawsuits regarding the election. 

When you file a lawsuit, you have to have a minimal level of proof that what you are saying is true.
You don't have to prove your entire case before you file it. The process of discovery is designed to have both parties exchange documents and information in the course of the lawsuit. 

For those who hate frivolous lawsuits, there are several stages of the process where a Defendant can ask the judge to get rid of the lawsuit because the Plaintiff can't carry their burden in proving their case. 

The first stage of getting rid of a baseless lawsuit is right after filing the lawsuit. Personally, I have never seen this happen in any case I have filed. Because I don't file baseless lawsuits. (There's a duty that lawyers owe to the court under Rule 11 which prohibits that.) But, this is an important safeguard to stop baseless lawsuits. So, if I am sued by someone I have no connection with and there is no evidence I have done anything wrong, this is when I would file a motion to get rid of the lawsuit. The standard applied to this type of motion is high. And It basically just means that the evidence attached to the lawsuit is fraudulent or fake or that even assuming all of the evidence is true, the Defendant did nothing wrong under the law. 

This is the stage at which all but one of Trump's election lawsuits have been dismissed. I think this is being lost somewhere on people who care. The last count I saw was that this has happened 39 (now 55) times and only 1 lawsuit has even been permitted to proceed to the next stage. 

I can't express how rare this is or how deeply it shows how baseless these lawsuits are. This is not a normal thing that happens in lawsuits. 

These lawsuits have been dismissed largely by Republican-appointed judges, even though that shouldn't matter. And they have been dismissed with some of the strongest language I have even seen coming from federal judges.

In case you are confused by these baseless lawsuits, the election is over. Even though our President is acting like a toddler and cannot accept reality, reality and the facts do not care about his feelings. He will stop being the president on January 20, 2021 at noon by operation of law. Because the law still matters, no matter your feelings about it."

And that's our one source of hope.  The law still matters and there are those that are still dedicated to upholding the law.  Country over party, even country over appointer.  The Supreme Court itself, all 9 justices including his recent appointees, refused to hear Trump's appeal over the Buck County Pennsylvania ballots.  The four states at issue in the suit have roared back in a blistering response, firmly denouncing Texas's actions and telling it to butt out of their elections.  "The court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated."  Twenty two other states and territories have filed amicus briefs supporting the defendants.  Republican Senator from Texas John Cornyn has issued his own rebuke of his state's actions.  "Number one, why would a state, even such a great state as Texas, have a say-so on how other states administer their elections?" and "I read just the summary of it, and I frankly struggle to understand the legal theory of it... It's an interesting theory, but I'm not convinced."

That's because there is no cogent legal theory.  This is political - just as it has always been.  The prevailing thought is that Paxton filed the suit to curry favor with Trump for a presidential pardon.  Paxton has been indicted for securities fraud and is currently being investigated by the FBI for abuse of authority.  

That's where we are, currying favor of a lame duck president because of the influence he has over the party.  How he has shaped the GOP into his personal party and how Republicans are too afraid of upsetting his base with reality.  Especially given his floated interest in running again in 2024, meaning he will continue to influence the actions of the GOP for years to come.

It would be laughable if it were not for the millions of Americans who stand by and accept his every word and accusation.  As if he were the only person telling the truth.  The depth of conspiracy you have to believe where literally everyone is out to get you except for the ones who support this man.  That is what makes this terrifying.

It's the beginnings of a stupid coup.  And I use that term, because if it happens, it happens through our sheer stupidity.  So far, we have every signal that it will not succeed.

But if you want to look for the battle lines of Civil War 2: Electric Bugaloo, look no further than this case.

It's All Over But The Shoutin'

The Associated Press (along with several other news organizations including FOX) has called Pennsylvania, and with it the presidency to now President-Elect Joe Biden.  While the counts will continue, as they are required to do and have done in every election prior, the numbers favor Biden enough to where he can comfortably be called the 46th President of the United States.

This is a historic moment and a historic election.  Historic voter participation numbers, historic vote counts for both Biden and Trump.  And now with this decision, the first female Vice President, the first female member of an executive ticket, the first Black vice president, the first Indian American vice president.  And Trump becomes only the tenth president to be elected to only one term, as well as the only President to have lost the popular vote twice.

Trump for his part has refused to concede, calling out Biden for a premature declaration of victory (something Trump himself did just hours after the election).  This is "far from over," he declared.  But all he has left is bluster and shouting.  His court cases are disappearing one by one, as his evidence is revealed to be hearsay within hearsay and obfuscation.  His only victories in his legal battles so far have been to be able to stand closer to observe the ballots being counted and for Justice Alito to require that the late arriving ballots in Pennsylvania be segregated from the other ballots.  That is something the Pennsylvania Attorney General had already required.  And the late arriving ballots in Pennsylvania have not been in a significant enough number to impact the election one way or the other.

So, while there is a threat of dragging this out, today's declaration feels final.  It feels like we can start the transition process.  Biden for his part has already begun receiving daily briefings on COVID-19 and other matters, for example.  Hopefully, cooler heads can prevail with the current resident to temper his bluster, and begin the safe and peaceful transfer of power.

It's this safe and peaceful transition of power between former rivals that has defined our republic for the past 240 years.  The idea that we can put aside our differences, that the most powerful person in the world can set aside that power and move on, was transformative.  To paraphrase King George III, "I wasn't aware that was something a person could do."

And it's what we need now.  To address the divide in this country.  To take the high road.  To lose gracefully.  And to prepare for the next administration.  

One more time.

[HAMILTON]
Mr. President, they will say you’re weak

[WASHINGTON]
No, they will see we’re strong

[HAMILTON]
Your position is so unique

[WASHINGTON]
So I’ll use it to move them along

[HAMILTON]
Why do you have to say goodbye?

[WASHINGTON]
If I say goodbye, the nation learns to move on
It outlives me when I’m gone
Like the scripture says:
“Everyone shall sit under their own vine and fig tree
And no one shall make them afraid.”
They’ll be safe in the nation we’ve made
I wanna sit under my own vine and fig tree
A moment alone in the shade
At home in this nation we’ve made
One last time

Trump Did It

I am loathe to admit, but he did it.

He actually did it.

Trump accomplished something I did not think even he could do.

No, not that.

He has decidedly not won re-election.  

Not yet.  

We're still counting valid, properly cast ballots.  This is why every vote counts and every vote matters.  And while we're continuing to count, it's looking very possible that he will not win this election. 

We can only hope.

No, Trump accomplished something more insidious, more impactful to our nation.  He has convinced his base, a great percentage of the American population that our election process is hopelessly rigged.  That this election is being stolen from him.  That he won, that he was ahead when it mattered, and everything now is just backdoor dealing.

He practically told us he was going to do it.  His intent to declare victory when he was ahead but before all votes were counted was made known last week.  It's still galling nonetheless.  Especially when you see him do it and follow the playbook exactly.

"This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election. We did win this election. So our goal now is to ensure the integrity for the good of this nation. This is a very big moment. This is a major fraud in our nation. We want the law to be used in a proper manner. So we’ll be going to the US Supreme Court. We want all voting to stop. We don’t want them to find any ballots at four o’clock in the morning and add them to the list. Okay? It’s a very sad moment. To me this is a very sad moment and we will win this. And as far as I’m concerned, we already have won it."
Trump from his 2:30 am address, Wednesday, November 4, 2020

As of this morning, there are still as many as seven states that have not been called for either candidate. At this time, three states lean to Biden (Michigan, Arizona, and Nevada), four to Trump (Alaska, Georgia, North Carolina, and Pennsylvania).  If those specific states remain aligned with their current candidates, Biden wins the election 270 to 268 electoral college votes.  Biden is leading in the popular vote by nearly 3 million votes.  He currently has the record of the most votes received by a single candidate in American history at 70,401,268 votes.  There are reasons for hope that Biden will ultimately win this election.

This, of course, is troubling to Trump and his base.  And in Trump's mind, there has to be something improper about this result.  You can see it in his speech above.  They are relying on three different "frauds" that they have identified as the basis for this outcome.  First, they believe there are more votes in Wisconsin than actual registered voters.  Second, they believe that Democrats are somehow voting after election day.  And finally, they believe there are fraudulent dumps of documents that are being manufactured by Democrats in key states like Pennsylvania, Georgia, and Michigan.

These beliefs reveal a fundamental lack of understanding of our electoral process, of how votes are counted, of how states are "called" for a candidate, and when our elections are actually finalized.

First, the issue in Wisconsin relates to a fundamental misunderstanding regarding how our elections are managed.  There is no federal election process - our election is basically 51 different elections running in concert.  Each state runs their own election (plus D.C.), with sometimes entirely different rules and exceptions from state to state.  Wisconsin is a case in point.  It is one of the few states that allows for same day voter registration - meaning you can wait to both register to vote and then vote on Election Day.  This could explain a discrepancy in any random number picked out as the number of registered voters in Wisconsin from some past date compared to the number of votes cast.  But it's not even necessary here.  On November 1, there were over 3,600,000 registered voters in Wisconsin.  3,239,920 votes were cast.  Record participation, not an excess indicating fraud.

Second, no one is voting after election day.  Just because tabulation is continuing does not mean that people are continuing to vote.  Just because mail in votes are still allowed to be received in states like Pennsylvania does not mean people are able to vote today and have it sent it to be counted.  Any mail in ballots that are allowed to be received after Election Day still had to be post marked by election day.  Voting has ceased.  We still have to count them.  And we need to count every ballot - because the decision may be that tight this year in some states.  

Finally and related - Democrats are not finding or manufacturing new pockets of data to swing the vote in their direction.  This is a natural result of the order in which votes were counted in those states.  In many states, early voting votes could not start being counted until Election Day.  In some instances, they could not be counted until polls closed on Election Day.  This often resulted in "day of" ballots being counted and reported first, with early and absentee ballots being counted and reported last.  This would explain the difference in states like Florida and Pennsylvania.  Florida was able to start counting its early ballots before election day and reported those early numbers first, with the in person, Election Day ballots following.  Since early voting went largely to Biden, but in person voting went largely to Trump, this caused a shift from blue to red early in the night.  

Pennsylvania could only start processing and counting its absentee and early ballots at 7:00 am ET on Election Day.  Mail in ballots and absentee ballots take more time to confirm than day of votes.  The envelope has to be opened, the signature has to be matched with the one on file to the smallest degree, the vote has to be recorded, etc. etc. etc.  This has resulted in Pennsylvania only being able to count about 10,000 early votes an hour.  The Pennsylvania Secretary of State estimates there are a million such ballots remaining to be counted.  This is compounded with the fact that mail in ballots in Pennsylvania only needed to be postmarked by November 3, not received.  They can be received up to November 6, and still be counted.  This was an accommodation made for COVID-19 and the slowing of the USPS, which has so far been upheld by the United States Supreme Court.  These votes are heavily expected to favor Biden, given the locations in which they have been cast (largely areas like Philadelphia) and their mail-in status.  Both have heavily trended toward Biden.  For example, in the last reported set of such ballots, 80% were cast for Biden.  With the numbers remaining, this could result in a huge blue shift for Pennsylvania.  It just will likely be Friday before we know for certain.

This isn't the outcome anyone wanted, but it was the honest outcome most people expected.  Most people analyzing the race knew it would come down to a fight and knew it would likely not be decided on Election Night.  Election Night is a bit of a fiction that we tell ourselves anyway.  The final count of ballots has never been completed on Election Night.  It always takes time. Generally, states have been able to be called for a candidate, though, when the candidates lead could not substantially be affected by the remaining votes cast.  That's why statisticians were talking all night about what counties were remaining to be counted in a particular state, or about what they knew of regarding the source of the current vote count.  This year in particular, there was a greater reluctance to rely on polling information for predictions.  This is why Texas took so long to finally be called for Trump.  And props to Texas for making it as tight of a race as it was there.

What we are seeing is how the election process actually works.  How the count and confirmation actually works.  We shouldn't be surprised by this, but I guess we're too accustomed to the theater.  

If Biden wins, he's not stealing an election from Trump.  Those states that are now leaning Trump and shift to Biden are not being taken away from Trump.  The vote is just accurately and completely being counted.

And that is something we all should want.  We want our votes to matter.  We want all votes to be counted.  Particularly in this election with record turnout (I'm seeing greatest in 120 years).  We want people to be able to trust in the system and continue this participation.

We don't need any candidate throwing a tantrum and deciding to stop counting when it favors him.  That's not how this works.  It's voter suppression, it's a crime, and it's part of a pattern he has engaged in.

So hang in there.  It might be a long week, but the process is working.  

Count every vote and let every vote count.  

Election Day 2020

 

Today's the day.  If you have not yet voted, drop what you are doing and get out there and vote.  

No excuses. 

Work isn't an excuse.  In many states, there is job protection if you need to take time off and get to the polls.  Check here to see the protections in your state.

Vote.

If you don't have child care, bring them to the polls.  I saw many people having to do so when I waited in line.  Children are allowed, though some states have a limit on the number of children permitted to accompany a voter.  Check with your local commissioner if you are planning to bring more than one or two.

Vote.

If you don't know the times for the voting polling places, check out the information graphic below.

If you do not know where to go vote, check vote.org for your local polling place.

Vote.

If you are unsure who best represents your beliefs and interests, check votesmart.org or ontheissues.org for a breakdown.

Vote.

If you need a ride to a voting location, Uber and Lyft are giving free rides to the polls.

Vote.

Be sure to bring a photo id with you to vote. The seven forms of primary identification are listed on votetexas.gov and include a passport, a driver’s license, a certificate of citizenship, a handgun license, a military ID card, personal identification card, and a voter’s ID certification.  Check what is required in your state.

Vote.

If you do not have one of these forms of identification, you can still vote with one of the secondary forms of identification available like a current utility bill and by filling out a Reasonable Impediment Declaration regarding why you cannot have one of the primary identifications. Even if you cannot make a reasonable declaration, you can still vote on a provisional ballot.

Vote.

If you run into any problems at the polls, at least ask to vote on a provisional ballot.  Verbatim, ask the following "Give me a provisional ballot with a receipt as required by law."  This will at least allow you to mark your vote and will give you six days to resolve the identification issue.

Vote.

If you cannot walk into the polling location, have someone go in and ask for a curbside ballot for you.  It should be available to anyone who has difficulty walking and standing in line for long periods of time.  If you need any other assistance in voting, make sure you know your rights in that regard.

Vote.

This is by far the most important national election of our lifetimes.  It is imperative that we exercise the most fundamental right that we have in this country and raise our voices.  We are already seeing record voter turnout in this election and that is a win regardless of who is ultimately named the victor.

Be prepared, we may not have a clear winner announced this evening.  That is not a bug in the system, it is not a failure - it's a feature.  We must be vigilant that every vote counts.  

I know it's tiring; I know we want this to all be over.  My prayer is that the results are so overwhelming that there is a clear decisive victory.  That the map is completely blue and reflects a sound refutation and repudiation of all that Donald Trump stands for.  That it is too overwhelming to ignore.  But I recognize that decisive of an election is likely not in the cards tonight.  We are potentially in for a long haul.  We're up to this fight and we will make sure every vote counts.

This year we are celebrating 100 years of women's suffrage.  I cannot think of a better way to celebrate the ultimate granting of a right that women should have always had than for America to finally show up with an overwhelming majority of active voter participation.

Your voice matters.

Your vote matters.

Get out there, and get to it.

Vote like your life depends on it, because it likely does.

VOTE!

I Voted

It took two attempts.

A combined hour and forty-five minute wait.

Two different polling locations.

Waiting in the cold.  

Getting out today in the rain.

But it's done.  I've voted.  And thankfully I didn't have to wait as long as I've heard some of my colleagues did.  Indianapolis had sites with 8 hour waits.  For early voting.

And still they waited.

This year is truly unprecedented.  I firmly believe this election is the most important one of my lifetime. It will have more impact on the trajectory of our nation than any in recent history.  That is why it is vital that you vote.

Make a plan to vote - Determine what form of voting works best for you.  Should you use a mail in absentee ballot that you place in a ballot box.  Should you vote early at an early voting polling location.  Should you vote on Election Day.  Make a plan that will be best for you and resolve to see it through.  Be warned that each has their potential pitfalls.  Lines on Election Day could greatly exceed even what we are seeing in early voting.  Due to recent maneuvering by the Supreme Court, I cannot recommend mail in ballots in this period leading up to Election Day unless you put it in an official ballot box.  If you place your mail in ballot in the mail at this time, it is likely it will not be counted (despite our history of doing so in the past).  If you plan to place your ballot in an official ballot box and are in Texas, be aware that thanks to recent moves by the government, there may only be one in your entire county.  If you plan to vote early, be sure you know the location of your ballot box or the location and hours of early voting locations.  There are six in our county with a variety of open hours, allowing everyone to find the most convenient voting location for their situation.

Vote Early - With the record voter turnout that we are already seeing, it is my recommendation to vote early if at all possible.  To ensure your vote is cast, to hopefully lessen your wait, to help make this an election that could be affirmed on election night, it benefits us all to vote early. 

Be Informed - There are so many tools at our disposal to get informed regarding the issues on our ballots that it is inexcusable not to do so.  Vote411 (http://www.vote411.org), Ballotpedia (http://ballotpedia.org/Sample_Ballot_Lookup), Ballot Ready (http://www.ballotready.org), and HeadCount (http://www.headcount.org/your-ballot) are just a few.   Many states even have their own My Ballot sites.  We live in an age of a wealth of information at our finger tips.  Please take advantage of it to learn what the candidates stand for, where you truly align (and not just the party you've always been affiliated with), and vote accordingly.

VOTE - The most important thing is just to vote.  Even if you make no plan and just show up on Election Day, vote.  Your voice matters, your vote counts.  Make it be heard.

Wear a mask.

Stay safe.

Vote.

It's the least we can do in civic duty.