2020 Election: Predictions, Results and Reactions

[N.E. Brigand]

Here is an interesting article with descriptions about how what is going on in the United States is seen around the world.

What The U.S. Election Meltdown Looks Like to Other Countries

Thanks for sharing that. Interesting and sad to see people in Iran and Kenya identifying similarities between this year's U.S. election and the troubled elections they've experienced in their countries. It's not good to be giving such opportunities for propaganda to the Iranian government.

One commentator I often read said four years ago, and is saying again now, that it's ridiculous how the U.S. after each election pats itself on the back for accomplishing a "peaceful transfer of power." He points out that this has been a regular function of the world's many democracies for half a century or more now, and in most of them, such peaceful transfers are simply taken for granted and get much less fanfare. And those are the comparisons we should be making: to our fellow democratic republics. So from the piece you link to:

"A growing number of South Koreans see the United States as a country past its glory days due to Donald Trump’s presidency. It’s evident in how the voting in the U.S. primaries was portrayed in Korea: Broadcasters delivered shocking images of long lines wrapped around polling stations where masks and sanitizer were scant. The contrast was particularly striking to South Koreans who had just voted in their April national election, including me. Lines moved quickly. The government checked temperatures at the entrance, then handed out hand sanitizer and plastic gloves. No sparks in cases could be detected afterward in a country that has been hailed throughout the pandemic for its contact-tracing efforts."

Although I chuckled reading the next paragraph:

"And the election itself has made some South Koreans question whether the United States is truly a democracy. Koreans themselves use a popular vote. It’s simply unfathomable for many of them to think that some people’s votes outweigh others or that a candidate can win the popular vote and still lose."

I suspect that if I looked through the older threads in this very forum, I'd find some people who would agree with the Koreans' point of view, but would add: That's because the U.S. has always been a republic not a democracy. It's a position conservatives have emphasized repeatedly at least since 2000.

(Edited to add: I had no idea that O. Henry coined the term "banana republic.")

[N.E. Brigand]

(Wait, something more from Powell: she says that Georgia's governor, Brian Kemp, a Republican, took bribes from Dominion, the company that sold the state its election machines, to throw the race for Biden.)

Just a month ago, Rudy Giuliani and his associates were claiming that they had come into possession of a laptop with damning evidence about Hunter Biden and Joe Biden. The response from serious conservatives was: Joe Biden needs to answer questions about this. Now, Rudy Giuliani and his associates claim that a Republican governor has taken bribes to give the election to Biden. Is this the breaking point? Will mainstream conservatives demand criminal investigation into Brian Kemp? Or is this finally too crazy for them to accept? And if so, will they ever admit that the Hunter Biden nonsense was just as ridiculous?

Whoa. The Trump campaign is now claiming that if not for (their insane conspiracy theory about) Brian Kemp having rigged Georgia's election, then Doug Collins rather than Kelly Loeffler would have qualified for the run-off election for the Senate.

Can't wait to see how Loeffler responds to that.

[Voronwë the Faithful]

Whoa is right. That is truly idiotic!

Speaking of idiotic, Trump's legal dream team has already filing a notice of appeal in the Pennsylvania case.

[River]

Won't that get mooted the moment PA certifies?

[Voronwë the Faithful]

Not necessarily. The could still (in theory) seek to reverse the certification.

N.E.B., can you provide a link about the Trump campaign claiming that if not for Brian Kemp having rigged Georgia's election, then Doug Collins rather than Kelly Loeffler would have qualified for the run-off election for the Senate? I have been able to find anything about that.

[Voronwë the Faithful]

Meanwhile, back in Michigan, Key GOP Michigan canvassing board member expected to vote against certifying results

I've not seen any indication of whether Van Langevelde, the other GOP member of the board, would also be likely to go against facts, reason, common sense and the law and also refuse to certify the results. Doing so would make no real difference towards Biden's overall victory, or even most likely his holding on to Michigan's electors (that he won much more convincingly than Trump did in 2016). It would just make a messy situation messier, and make Michigan look like a laughingstock. I doubt it will happen but it could. We'll know tomorrow.

[N.E. Brigand]

N.E.B., can you provide a link about the Trump campaign claiming that if not for Brian Kemp having rigged Georgia's election, then Doug Collins rather than Kelly Loeffler would have qualified for the run-off election for the Senate? I have been able to find anything about that.

Well, the Trump campaign has just made this a little trickier, because they're now claiming that Sidney Powell, who has thus far been appearing at the Trump election litigation press conferences with Rudy Giuliani and Jenna Ellis, and who was identified by Trump himself as part of his campaign representation, is not part of the team. Instead, they say, she "is practicing law on her own."

And it was Powell (1) who was pushing the claims (2) about Kemp and Loeffler (the links are to Real Clear Politics and the the Washington Post, respectively.)

(1) "Powell said Georgia GOP Gov. Brian Kemp is 'in on the Dominion scam.' Accused Kemp and GA Secretary of State of accepting financial benefits in conspiracy to defeat Trump. Evidence? 'I can't give you any more details,' she said."

(2) "Some Republicans, meanwhile, are being wrapped into theories of election interference that they themselves aren't advancing. In her weekend interview on NewsmaxTV, Sidney Powell — who has been appearing as part of the Trump legal team before they distanced themselves from her Sunday evening — said that she was 'reasonably certain John James was ripped out of his seat,' which James himself doesn't say, 'and the same thing is true for Doug Collins in Georgia.' Collins, who now represents the Trump campaign in its challenges to the Georgia count, ran 292,760 votes behind the top two finishers in the all-party Senate primary this month.'"

What's particularly striking to me about this is that just earlier today as I was reading some skeptical conservatives' commentary about Powell's wild accusations on Twitter (e.g., by Byron York of the Washington Examiner -- and he's someone who I usually disagree with), I noticed how most of the replies were along the lines of: The claims may sound extreme, but I trust Sidney Powell, so I'm sure when she does present the evidence, it will blow us all away. Powell has acquired a high reputation on the right over the past year as Michael Flynn's attorney. (As Marcy Wheeler has noted, if Flynn had just kept his original attorneys and fulfilled his cooperation deal in the Bijan Kian trial, he'd probably have been sentenced to nothing worse probation by Judge Sullivan a year ago or more. Instead he hired Powell and made a big show of it for reasons I have yet to understand.)

Edited to add: Oh my. Hardcore Trump supporters are already incorporating this information into their narrative as if it was always true. I checked out what Byron York had to say on this development regarding Powell as "not a member of the Trump Legal Team," and here's a sample of the apparently sincere replies:

--"Who said she was part of the Trump legal team?"

--She's a "representative of the legal team, not on the legal team."

--"Sidney had said several times she’s on her own. She’s set up a non profit to help pay for her work."

--"No one needs to panic. This is just clarification since Media butchered everything. Sidney Powell and I have both said that she’s working for free and with a team she has autonomy over. All good. #PLAN" (That's someone with the "Stop the Steal" group.)

--"She is representing the 'people' in this case; her case has Equal Protection (Constitutional) ramifications. How the case is strategically presented will have jurisdictional ramifications.She’s filing on behalf of the voters."

(Oh, and York himself still believes Powell has done good work for Flynn.)

[Voronwë the Faithful]

Thanks for the detailed response. Sidney Powell was certainly presented as a member of the Trump legal team at that bonkers news conference the other day.

She was a darling of radical conservatives long before she took over the representation of Michael Flynn. But that certainly raised her profile.

I find it extremely disturbing to have licensed attorneys spouting such utter nonsense, and even (in Giuliani's case) doing in a court proceeding (Powell did it some extent in the Flynn case, and did not achieve anything with Judge Sullivan other than to aggravate him, but succeeded with Bill Barr instead.)

[Túrin Turambar]

I find it extremely disturbing to have licensed attorneys spouting such utter nonsense, and even (in Giuliani's case) doing in a court proceeding (Powell did it some extent in the Flynn case, and did not achieve anything with Judge Sullivan other than to aggravate him, but succeeded with Bill Barr instead.)

This had crossed my mind as well. I'm not familiar with how the legal profession in the U.S. is regulated, but I figured at some point the members of the President's legal team must start coming down on the wrong side of rules against making baseless claims, starting litigation with no prospect of success, and wasting the court's time.

[Voronwë the Faithful]

Rule 11 of the Federal Rules of Civil Procedure procedure reads as follows:

Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
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(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.

(3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.

(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:

(A) against a represented party for violating Rule 11(b)(2); or

(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.

[N.E. Brigand]

Thanks for the detailed response. Sidney Powell was certainly presented as a member of the Trump legal team at that bonkers news conference the other day.

She was a darling of radical conservatives long before she took over the representation of Michael Flynn. But that certainly raised her profile.

I find it extremely disturbing to have licensed attorneys spouting such utter nonsense, and even (in Giuliani's case) doing in a court proceeding (Powell did it some extent in the Flynn case, and did not achieve anything with Judge Sullivan other than to aggravate him, but succeeded with Bill Barr instead.)

I totally forgot that a couple months ago in the Flynn case, when Judge Sullivan asked Powell about the nature of her communication with the White House regarding Flynn's case, Powell (1) claimed that any such conversations were protected by executive privilege and (2) acknowledged that she had spoken about the case with Jenna Ellis.

It was Ellis who today issued the Trump campaign statement distancing themselves from Powell.

I'll bet Mitch McConnell played a role in tonight's announcement: Powell's claim today that Loeffler stole the race from Collins threatened to depress Republican votes in the January run-off, and no way would McConnell stand by while his majority was put at risk.

[Voronwë the Faithful]

Collins, of course, was specifically designated by Trump to oversee the Georgia recount effort after Collins finished behind Loeffler in the special election. And you may recall that Kemp appointed Loeffler to the Johnny Isakson's Senate seat instead of Collins, because he (Kemp) thought that Loeffler would have any easier time keeping the seat in the special election (only to have Loeffler be forced to compete with Collins for who could be more Trump-centric then the other, opening the door for Rev. Warnock.

[N.E. Brigand]

Meanwhile, back in Michigan, Key GOP Michigan canvassing board member expected to vote against certifying results

I've not seen any indication of whether Van Langevelde, the other GOP member of the board, would also be likely to go against facts, reason, common sense and the law and also refuse to certify the results. Doing so would make no real difference towards Biden's overall victory, or even most likely his holding on to Michigan's electors (that he won much more convincingly than Trump did in 2016). It would just make a messy situation messier, and make Michigan look like a laughingstock. I doubt it will happen but it could. We'll know tomorrow.

Here's an argument from the former chief legal counsel to Michigan governor Jennifer Granholm (2003-2011) that the Michigan state canvassing board has no choice but to certify, because the secretary of state has met all the requirements and the law gives the board no discretion to not certify for other reasons (e.g., to "conduct an investigation"); he adds that a board member who fails to do so risks up to a year in jail.

(And of course, it's a state crime, so Trump can't pardon it.)

[Voronwë the Faithful]

That's consistent with my understanding, which is why I said earlier that "I've not seen any indication of whether Van Langevelde, the other GOP member of the board, would also be likely to go against facts, reason, common sense and the law and also refuse to certify the results."

ETA: Did you see John Garth's blog post about Neil Gaiman's tribute to Christopher Tolkien. It is well worth reading. I am going to post a link in the Shibboleth forum here.

[River]

Okay so remember the PA case that got dismissed with prejudice and then appealed? Turns out the appeal is only for the denial of a motion to amend the complaint. So if they win the appeal, but the case is dismissed with prejudice...what happens? Would refiling be possible if its the same case but a different complaint? Is there something they can actually achieve with this or was this a thing filed to placate a difficult client?

[Voronwë the Faithful]

In the extraordinarily unlikely event that this appeal was successful, they would be able to file their proposed second amended complaint, which for the most part would restore the claims that they removed from the original complaint because the attorneys that were then representing them knew that they were completely bogus. The defendants (the Secretary of State and the various counties that allowed curing of absentee ballots) would then have to do a new motion to dismiss. However, the judge was well within his discretion to deny leave to amend the complaint.

ETA: Where did you see that the appeal is only to the denial of leave to amend? I have looked at the Notice of Appeal filed on the docket and it just says that they are appealing the order entering final judgment in favor of defendants and against plaintiffs.

[River]

Brad Heath's twitter feed.

[Voronwë the Faithful]

Thanks. He knows his stuff! He managed to get documents filed with the Court of Appeal that as someone else mentions in that thread, are not yet available on Pacer (I don't know why). As he points out, Giuliani has made such a big deal of saying that his goal is to get to the Supreme Court, but by appealing only the denial of leave to amend, the best that they can hope for is to have the case returned to the District Court (as I mentioned earlier).

[River]

Can you make any sense of their approach or are you as confused and dismayed as the rest of legal Twitter?

[Frelga]

Well, this just happened.

POLITICO: Trump campaign cuts Sidney Powell from president’s legal team.