Inter alia, Snell & Wilmer (over 400 lawyers) and Porter Wright Morris & Arthur (more than 200 lawyers) have withdrawn from legal representation of Dear Leader, abandoning the cases they filed several days ago.
Jones Day, with more than 2,500 lawyers, is, as of this moment in the late afternoon of Friday the 13th, soldiering on. Their case is the one about how the courts should order Pennsylvania not to count the mail-in ballots that arrived between Election Day and the following Friday. As far as the potential to change the result in Pennsylvania, the case is moot: Biden’s Pennsyvania margin substantially exceeded the number of disputed ballots.
The Jones Day attorneys working on the case are apparently not enhancing their resumes.
Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct—upon which most state bars rely at least in part—stipulates that a lawyer shall not bring an action unless a basis exists in law and fact for doing so. This rule implies that lawyers must do due diligence to inform themselves of the facts of the case and reasonably determine that a good-faith argument can be made in defense of the client’s legal claim. Rule 11(b) of the Federal Rules of Civil Procedure—many of which are designed to serve as “gatekeepers” against frivolous lawsuits—requires lawyers to ensure that their arguments are not frivolous, and that factual contentions either have or are reasonably likely to have evidentiary support. Although the courts do not often exercise their discretion to enforce it, Rule 11(c) provides judges with the authority to impose sanctions against lawyers who have violated Rule 11(b).
These due-diligence obligations are of particular importance in the cases Trump and his team are now litigating. Rule 9(b) of the Federal Rules identifies certain “special matters” that must be pled with greater specificity and are thus subject to what courts call “heightened scrutiny.” One of these matters is fraud: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake” (italics added). More than one court has held that the “heightened scrutiny” Rule 9(b) requires also applies to claims of election fraud.
The cancer on our democracy is metastasizing. The assertion that Trump is legally entitled to his day in court—which is true, as far as it goes—is progressively transmogrifying into the claim that the election was rigged, regardless of what courts and election officials may say.
The state of play can be described as follows: Biden appears very likely to win 306 Electoral College votes, 36 more than he needs for the presidency. This is a comfortable lead. Recounts in even the closest states, where the candidates are 10,000 to 20,000 votes apart, are extremely unlikely to change the election results; the most recent Wisconsin recount, in 2016, shifted the result by 571 votes. And nothing in those closest states indicates the kind of systemic failure that could lead to a more dramatic reversal.
President Trump needs Republicans to help him validate his big lie that the votes of millions of Americans are illegitimate and that the election is being stolen from him. Meanwhile, Republicans need Trump to keep his voters energized for two big Senate runoffs in Georgia.
This has created a Faustian bargain of sorts: Republicans keep feeding the illusion that the outcome of the presidential race remains in doubt by refusing to say Trump should concede. And Trump keeps screaming that the outcome is fraudulent, which he may or may not actually believe, but either way, it has utility to Republicans because it keeps his voters in a fury.
But at the core of this bargain is a fatal flaw, one rooted in iron facts about the law and the calendar: Republicans cannot sustain this illusion for much longer. Which hints at longer-term truths about the current situation and how it might ultimately wind down.The flaw in this bargain is evident in the fact that Trump is reportedly angry at Mitch McConnell (R-Ky.) and Republicans for not doing quite enough to keep that illusion alive. …
So what happens when the Trump campaign loses more lawsuits and it becomes increasingly evident that there’s no path left? Trump will grow angrier, and his demands that Republicans remain in the fight will grow more unhinged.
But the illusion cannot be maintained forever. And the calendar is unforgiving. All the key states where Trump is still fighting — including Arizona, Georgia and Pennsylvania — are supposed to certify their results by the end of this month.
If you were gripped by a particularly naive hopefulness, you might have thought that President Trump’s defeat in the 2020 election would produce a brief moment of honesty and responsibility from the Republican Party. “We lost, and it hurts,” they might have said. “But let’s handle it like adults and show that we’re committed to democracy.”
But no. As the Trump presidency comes to a close, members of the party that has shown itself so incapable and unworthy of governing have one last card to play: They will do everything in their power to poison the American political system for years to come.
They’re doing so by spreading false claims about voter fraud, to convince their own base that the election is right now being stolen from Trump, its rightful winner. This is critical to understand: Republicans know that the majority of Americans are not persuaded by the lies and conspiracy theories they’re tossing around, nor are the courts that one after another are rejecting their preposterous lawsuits.
The target is Republican voters, and the goal is to light a fire of rage that they hope will burn for as long as Joe Biden is president.
And with just a few exceptions, the entire Republican Party and conservative media world are enthusiastically participating in the scam:
Prominent Republicansin Congress, including Senate Majority Leader Mitch McConnell (Ky.), Sen. Lindsey O. Graham (S.C.), and Sen. Ted Cruz (Tex.) have insinuated or stated outright that “illegal votes” are being counted across the country. “If Republicans don’t challenge and change the U.S. election system, there will never be another Republican president elected again,” said Graham.
In a reversal of long-standing Justice Department policy, Attorney General William P. Barrtold prosecutors that they could pursue allegations of “vote tabulation irregularities” while the counting is being completed, a move so blatantly partisan that the official in charge of the Justice Department’s Election Crimes Branch resigned in protest.
Republican National Committee Chair Ronna McDaniel hasinstructed state party leaders and activists to echo Trump’s false claims of voter fraud.
Georgia Sens. Kelly Loeffler and David Perdue, both headed for runoff elections in January, releaseda joint statement saying the Republican secretary of state has “failed to deliver honest and transparent elections” and demanding he resign. They provided precisely zero specifics or evidence for their claim; the fact that they didn’t win outright was apparently proof enough of fraud.
Republican attorneys general from 10 statesasked the Supreme Court to intervene in Pennsylvania to restrict the number of ballots being counted there.
Pro-Trump conservative media has relentlessly promoted bogus stories of fraud.Rush Limbaugh flatly stated the new operating principle: “There’s simply no way Joe Biden was legitimately elected president.”
For hours every night, Fox News viewers are fed the line that the election is being stolen, a claim repeated on lesser outlets such as Breitbart and One America News.As Lou Dobbs declared: “Many are trying to steal this election from President Trump. There is no doubt about it.”
A new pollshows 70 percent of Republicans now believe that the election was not free and fair.
There is a benign — but utterly mistaken — way to think about what Republicans are doing right now on Trump’s behalf.
“What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change,” one Republican official told The Post. Sen. Christopher A. Coons (D-Del.) told CNN that GOP senators are privately saying: “They call me to say, ‘Congratulations, please convey my well wishes to the president-elect, but I can’t say that publicly yet.’”
But this is not merely a temporary bit of playacting to soothe the tender feelings of the toddler in the Oval Office. It will be at the heart of Republican strategy for the next four years.
Just as Republicans used the racist “birther” lie to tell themselves that Barack Obama was not a legitimate president, they will use the lie of a stolen election to say the same about Biden. Conspiracy theories, the belief that liberals cannot legitimately win or govern, and an utter lack of commitment to any democratic principle are not merely features of contemporary conservatism, they are becoming its very essence.
It is not enough for the GOP’s base to be disappointed in the results of the election and determined to do better next time. They must be enraged. For the conservative media, creating and feeding anger is a business model that goes back decades. For Republicans in Congress, one of the key functions the stolen election lie will serve is to rationalize their own misdeeds.
Because if Biden is an illegitimate usurper, then any methods are justified to oppose and hinder him, no matter how morally abhorrent or damaging to the country.
It is almost impossible to overstate how toxic this all is. Republicans are trying to destroy any commitment their voters have to the American system of government. They’re working to convince voters that any election that does not produce a Republican win, not just in 2020 but in the future, is inherently fraudulent and need not be acknowledged or respected.
This is not coming from the fringe, or a few intemperate voices, or just a corrupt president on his way out. It is the project of the entire Republican Party and conservative movement. And it is nothing short of an attack on democracy itself.
We Americans continue—and with good reason—to grieve for our country.
I commend Mr. Last’s take on the looming crisis, and have the following additional thoughts.
Just over a month from now, on December 14, the members of the Electoral College will meet at their appointed places and cast their official votes for president. Unless someone disrupts the Biden Bandwagon, 306 electors will show up and vote for Biden, and he will officially be elected president.
What—canvassing all metaphysical possibilities—might prevent this from happening?
One, the Supreme Court, acting in response to litigation brought in multiple states—some combination of Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin—might issue multiple injunctions overturning the election results in multiple states.
Or two, the Republican legislatures of multiple states, pretending in accordance with their powers under Article II, Section 1, Clause 2 of the Constitution, might purport to appoint electors for Donald Trump, even though the majority of votes in that state were cast for Joe Biden.
Or three, a military coup is yet a third metaphysical possibility.
Any of these three events would trigger a constitutional crisis, and could well lead to the end of democracy in the United States
What Will Actually Happen Between Now and December 14?
The lawsuits will fail, and it will become increasingly clear that they are failing.
Immense pressure will build on Republican legislators in states that voted for Biden. A civil war among Republicans has already broken out in Georgia. It will spread to other states, and it will be, at least metaphorically speaking, bloody.
What Will Actually Happen Between December 14 and January 20?
Orange Man will leave, or he will try to stage a coup.
Robert Costa, national political reporter for WaPo and moderator of Washington Week in Review, sums up the situation.
Thus, it was apparently Moscow Mitch’s idea to have the two senators from Georgia issue this statement:
Georgia’s Republican Secretary of State responded:
You will notice that Purdue and Loeffler did not cite any purported evidence of “fraud” that might suffice to mislead an exceedingly gullible person.
Nor did they cite any clearly bogus “evidence.”
No—in apparent reliance on the legal principle res ipsa loquitur, “the thing speaks for itself”—they hung their hats on the assertion that when Black people vote for their opponents in Fulton and DeKalb Counties, there is necessarily fraud, because Black Lives Don’t Matter and Black Votes Don’t Matter and Black folks voting in significant numbers IS fraud.
And that when White people in Cobb and Gwinnett Counties vote Democratic, their votes don’t count either, because they are Democrats. Because, just because.
And that the duly elected Republican Secretary of State must resign, because he is running a fair election.
Diogenes has visited Georgia Republican headquarters, and has found one honest man.
Getting all the Georgia Democrats back to the polls in January will be problematic, but spitting in their eye would not seem, on the face of things, a tactic likely to discourage them from voting. So Moscow Mitch and his munchkins are apparently trying to juice up the yahoos. I don’t know whether that will work. I am sure that there will be some polling, and that—once burned, twice shy—I will pay not attention to it.
But let’s look at some data. Orange Man’s 2020 Georgia voters exceeded his 2016 voters by 367,963 souls. Pretty impressive juicing, doncha think?
In 2016, Trump won 50.44 percent of the Georgia franchise, whereas this year, he has earned 49.3 percent.
On the face of things, one may hazard the conclusion that Georgia yahoos in 2020 are about as juiced up as they are going to get.
In Conclusion: A Fun Fact
My foreign correspondent has advised that Löffel ( or Loeffel, if you can’t find the umlaut on your keyboard) is German for spoon.
Loeffler, therefore is one who spoons—a spooner.
Let us use our new vocabulary word in a sentence: “Senator Loeffer enjoys spooning with Mitch McConnell.”
We are right to be concerned—though hardly surprised—that so many Republicans have signed on to Trump’s no-concession strategy.
Nothing lasts forever. And so, there will come a point when Madisonian democracy breaks down in the United States, to be replaced by some other political system. It is metaphysically possible that time will come in the year 2020. Maybe just a soupçon more than merely metaphysically possible.
The Butcher, the Baker, the Candlestick Maker—and Donald Trump
But step back and draw a breath. The First Amendment enumerates, among other liberties, the right to petition government for the redress of grievances. The relevant case law holds that, within very broad limits, the Constitution affords all citizens the right to sue in court, even if the claim is less than a likely winner. (The right runs out when the claim is entirely frivolous. And, when your claim is utterly frivolous, the courts have a way of letting you know.)
The right to pursue iffy claims in court belongs to you and to me. It belongs to the butcher, to the baker, and to the candlestick maker. And it belongs to Donald Trump.
Now, we can exercise our legal rights, constitutional and otherwise, in ways that are immoral or imprudent or otherwise blameworthy. But all that said, merely exercising your constitutional rights does not support the charge that you are seeking to overthrow the government.
A Fundamental Tactical Error by the Orange Man
If Dear Leader has some general, inchoate plan to bring the curtain down on Madisonian democracy—which he very probably does have—then filing a whole bunch of lawsuits is exactly the wrong move on his part.
That’s because he has no evidence of any wrongdoing remotely sufficient to change the race. And because, having no such evidence, his lawyers will be booted out of court, and will be lucky if they escape serious disciplinary action by the state bars of this land. And because, with his cases booted out of court, Dear Leader will lack any remotely plausible argument for retaining power.
He will, in other words, have shot his wad.
Progressives, therefore, should be grateful beyond words that Orange Man has placed such a large number of eggs in the litigation basket.
Mr. Pursue and Ms. Leoffer have jointly alleged that “The secretary of state has failed to deliver honest and transparent elections. He has failed the people of Georgia, and he should step down immediately.”
Georgia’s Secretary of State has responded:
“My job is to follow Georgia law and see to it that all legal votes, and no illegal votes, are counted properly and accurately,” Raffensperger said. “As secretary of state, that is my duty, and I will continue to do my duty. As a Republican, I am concerned about Republicans keeping the U.S. Senate. I recommend that Senators Loeffler and Perdue start focusing on that.”
To put this in context: Georgia Republicans are now divided into
a quite large proportion who wear tin hats and have embraced the QAnon conspiracy, which is a horse of a different color
a significant proportion, who are sure to follow Trump, Purdue, and Loeffler down their chosen rabbit hole, and
a goodish number who are sorry that Biden lost in Georgia but who have not taken leave of their senses.
If Loeffer and Purdue win the runoffs, as they may, it is only going to be by the hair of their chinny chin chin.
I believe that progressives may rejoice in the statement they issued this afternoon, because it will not be conducive to Republican unity and enthusiasm.
As the AJC has pointed out on other recent occasions, if you think the election is being stolen, and that your own Republican Secretary of State has joined the back stabbers, why vote?
Inasmuch as this seems to be the year of the gut, I will tell you first off that my gut tells me that Ossoff and Warnock are going to lose in the runoff, albeit narrowly. Now let us see what the numbers actually say.
Per the AJC this morning, here are the data on Georgia results for Biden, Trump, Jorgensen (the Libertarian), Purdue, and Ossoff.
Biden, 49.5%, 2,465,781
Trump, 49.3%, 2,455,428
Jorgensen, 1.2%, 62,894
Purdue, 49.8%, 2,456,322
Ossoff, 47.9%, 2,366,123
And here are some reasonable conclusions that we might draw from these data.
Jon Ossoff underperformed Joe Biden last week. And, unless that can be overcome, Ossoff will lose the election
That said, let’s compare Purdue, Trump, and Biden.
Biden, who won Georgia, received 9,459 more votes than David Purdue.
Thus, on January 5, if all the November Biden supporters show up and vote for Ossoff, and if all the November Purdue supporters show up and vote for Purdue once again, then Ossoff will win the runoff.
And what about the Libertarian Party supporters? One might think that they might come out and support Purdue in the runoff. On the other hand, if they didn’t vote for Purdue in November, which they apparently did not, will they really change their minds come January?
about 92,218,000 of them did not vote (or, in the case of a small proportion of them, their votes have not yet been tabulated) (39 percent)
about 75,216,000 have voted for Biden (31 percent),
about 70,813,000 have voted for Trump (30 percent), and
about 2,442,000 voted for other candidates (1 percent).
A Comparison with 2016
Trump received approximately 7,828,000 more votes in 2020 than he garnered in 2016.
Biden received about 4,959,000 more votes in 2020 than Hillary Clinton got in 2016.
In the 2016 popular vote, Clinton beat Trump by 2.1 points (48.2 to 46.1)—among those who actually voted.
As matters stand now, Biden is winning the popular vote by 2.9 points (50.6 to 47.7)—likewise, among those who actually voted.
Some Conclusions I Draw—Based, This Time, on Actual Votes
An astonishing number of our fellow citizens choose to opt out of democracy.
Trump strategy of stoking fear and spreading a firehose of pathological lies was crowned with partial success, in that he bested his 2016 performance by almost eight million votes. His increased voter support this year represents an increment of just over three percent of the voting eligible population.
But Trump’s efforts to juice up a portion of the American population repelled another significant portion of voters. Hence, his loss.
It is understandable that politically active folks of all persuasions might dream fever dreams of winning by somehow motivating even more of the inactive 39 percent to become active and choose their side. But, given the extraordinary events of the past four years, we have probably maxed out the percentage of our population that is going to participate in the electoral process.
In sum, about four out of ten of us just opt out of democracy, and the remainder are pretty much equally divided. We may not like this situation. And we may draw very different implications from it, about how we should conduct the political process. But anyone who does not recognize this basic fact would be a disappointment to Sunzi. He would not know his side, and he would not know the enemy.
 See this page of the U.S. Elections Project on why it’s better to use voting eligible population rather than data on registered voters to evaluate turnout.
Most of what I have written in this blog over the past four years has been wrong. The main reason for the multiple errors has been reliance on the polls, which—whether individually or averaged together—were consistently wrong in highly material ways.
Quibble me no quibbles about how they were generally off only by “a few percentage points.” That’s generally true—depending on how you define a “few.” Overall, however, they gave a false and misleading picture of the overall situation, and the truth was not in them.
That is my primary error. My secondary error lay in this. I interpreted the (erroneous) polls in light of (my) common sense, and in light of actual voting data, especially from 2018. But my common sense was off by a noticeable margin, in that I underestimated the number of fools and knaves who live among us.
A reasonable response on my part would be just to give the whole thing up, and cultivate begonias, or start learning Swedish, or something of that nature. But that is not how I am made. I feel a need to try to understand what is happening around me.
So, it’s time to start over, beginning with some actual numbers.
If you are a Trump supporters, if your prophesy has failed, and if you are convinced the Democrats stole the election, then the courts are open to Trump’s attorneys to sue and correct this grievous error.
One quarter of the federal judges are Trump appointees. One half of the federal judges are Republican appointees. THEY ARE BOUND TO LISTEN TO YOUR EVIDENCE WITH RECEPTIVE EARS.
THAT IS WHY YOU MUST IMMEDIATELY GET YOUR EVIDENCE OF VOTER FRAUD INTO THE RIGHT HANDS.
You must IMMEDIATELY report your highly persuasive evidence of voter fraud and election theft to Trump’s legal team. DO NOT DELAY! AMERICA’S FUTURE DEPENDS ON YOU! CHOP CHOP!