"please ignore the stolen election claims that make us look bad"
[Originally written as a series of posts on 08/19/2021 on The Motte and reposted here roughly edited for posterity. As this exchange will vividly illustrate, the only way I can possibly address the endless criticism I’ve received regarding how I approach the stolen election topic would be for me not to say anything at all, or deliberately pretend the kooks don’t exist. I don’t cosplay as an ostrich, and that crowd needs to look inward and reflect on how they’ve arrived at such a humiliating situation, because it’s definitely not my fault.]
Context: In response to my post highlighting Mike Lindell’s “cyber symposium” and other kookery, I’m inevitably accused of ‘weakmanning’ whenever I discuss any of the avalanche of humiliating stolen election theories.
Yassine:
We've been over this: I have no idea which lawsuits I'm supposed to consider fair game to criticism. Powell used to be cool, until she wasn't. Wood used to be cool, until he wasn't. Giuliani used to be cool, until he wasn't (and lost his license for making shit up). I can't just deliberately ignore blatant failures just because the implications (e.g. why do so many of these litigation endeavors end up flaming wrecks?) are uncomfortable for the election fraud adherents. That's an unusual form of selection bias.
Motteposting:
By the standard that they were the only cases Trump publicly supported, and that pretty objective conservative legal observers who were otherwise skeptical of Trump’s election challenges, e.g. Will Chamberlain or Ben Domenech, found one or more of them (especially the Kelly and GA cases) most promising out of the cases that were brought. Which you would know if you’d truly been paying attention to the conservatives whom you persistently claim to want to understand.
Yassine:
I know who Will Chamberlain is and I used to follow his work. I immediately stopped taking him seriously when he expressed despondency that the Texas SCOTUS lawsuit was thrown out. It's completely ludicrous to claim that Chamberlain was skeptical of Trump's election challenges; he had thrust himself into the fore while he was on the ground covering Pennsylvania when he posted a video of an alleged Republican poll observer being turned away from a polling location, and he seemed to be an early adopter of the #StopTheSteal hashtag on Nov 3rd. The whole issue regarding poll observers being turned away was total bunk anyway.
I've already posted about Paxton's case multiple times (e.g. [1], [2]), and anyone who credulously believed its merits is either engaging in kayfabe or is woefully out of their depth on commenting on legal issues. The Texas suit was thrown out because of standing and jurisdiction, both of which are basic civil procedure questions. You can't sue anyone unless you have a "cognizable injury in fact", and how the legislature of another state chooses to portion out its electors is not the business of any other state. If you think it should be, you'd have to first change the constitution, but I don't think anyone wants a world where any state can sue any other state if it doesn't like how they picked their electors. The lawsuit was completely bogus and unsupported by the law.
Maybe Chamberlain highlighted a really good lawsuit but it must have happened after I stopped paying attention to him. I had no idea who Domenech is, but I did post about the Kelly lawsuit here. I don't know what the "GA election contest" you're referring to is, but I've definitely covered plenty of GA cases.
I've also posted about plenty on lawsuits filed directly by Trump's own lawyers. Here's one post highlighting multiple cases, all by the Trump campaign's own lawyers, and all of them highlighting examples where the lawyers either failed to ask or explicitly turned down an opportunity to have an evidentiary hearing. I don't understand the basis that I only considered Trump campaign lawsuits only tangentially. Obviously I don't expect you to have my entire post history memorized, but you're making specific allegations about what I chose or chose not to focus on. If you're asking me to focus on Trump's team, then the fact that Giuliani had his license suspended for literally lying about election fraud claim is completely relevant. Are you arguing that Giuliani didn't lie? Or are you arguing that he's not Trump's personal lawyer? Or are you arguing that his lies about electoral fraud claims are not germane to the topic at hand? Which is it? Your objection appears predicated on me highlighting anything that casts a negative light period.
You're accusing me of deliberately ignoring the "non-kooks", and specifically the ones directly retained by the Trump campaign. As proof of your contention, you claimed I ignored cases cases that I have in fact explicitly written about on this subreddit. Is it actually within the realm of possibility that you'll accept I've reviewed a sufficient universe of these cases to rise to your satisfaction?
The pattern of our exchanges appears to follow some template of this:
ymeskhout: Here's a case alleging election fraud that went down in flames
motteposting: It's really unfair that you focus so much on the failures, why don't you focus on this other non-kooky one instead?
ymeskhout: I already did, here's a link.
motteposting: Ok, but you haven't focused on this other non-kooky one.
ymeskhout: I already did that one too, here's a link.
motteposting: Ok, it's really unfair that you focus on the losses, what about this one instead?
And so on. Is there an end to this treadmill? I'm still listening to which non-kooky cases you think I should pay attention to. In the spirit of charity, I promise a diligent examination of whatever case you bring to my attention that you think I overlooked.
Motteposting:
[…]
I'm still listening to which non-kooky cases you think I should pay attention to.
The Trump case before the Wisconsin Supreme Court concerning indefinitely confined voters. The Kelly case about Act 77 (its merits, not its timeliness). The GA election contest filed in Fulton Superior Court by David Shafer and the Trump campaign. Those constitute a good starting point.
Yassine:
I think it's evident that there is nothing I can do to satisfy your complaints about how I cover this topic except either not cover it at all or deliberately ignore anything that casts a negative light on it.
You accuse me of deliberately ignoring the "non-kooks" in this field, and cited several individuals or cases that I apparently ignored or did not give enough credit. Those examples were in fact indeed covered by me, and I gave examples where I had written about and highlighted them in this very sub. Your accusation appears baseless.
I still have literally no idea how I'm supposed to differentiate the kooks from the non-kooks. Apparently I should look at what Trump publicly supported. Ok, so does that mean that the random guy working in China who shared Brad Raffensperger's last name is one of those examples? Should I consider the Italian satellite theory because it was pushed by his own Chief of Staff to DoJ officials? I have no idea what the guidelines are supposed to be here.
[…]
Regarding your specific claims.
PA's Act 77 was passed in Oct 2019 with overwhelming majorities. Republicans held majorities in both chambers, and it passed the Senate with not a single Republican voting against it (and a majority of Democrats voting against it), and it passed the House with 2 Republicans out of 110 voting no (and again a majority of Democrats voting against it). Why would Republicans near-unanimously support an unconstitutional law? That's weird! Why would they wait more than a year before challenging the unconstitutional law they just passed? That's also weird! Given those circumstances I'm supposed to conclude that Kelly isn't using his last minute challenge as a disingenuous pretextual attempt to get his favored candidate to win?
I looked at the Act 77 filing submitted by US Congressman Mike Kelly. His primary argument is that the State Supreme Court in PA should be able to override the legislature's attempt to expand what he calls "absentee" voting. Mind you, this is exactly the opposite position taken in the Degraffenreid case, where the Republican Party of Pennsylvania was arguing that it isn't the State Supreme Court's job to interpret what the legislature says about elections.
Kelly cites the McPherson case in support, which does indeed constrain a state legislature's for purposes of the Electors clause by the respective constitution of its state. So did the PA legislature violate its own constitution when it passed Act 77? I have no idea, and I don't have enough familiarity with the Pennsylvania constitution to opine. I suppose it's at least plausible. The response cites multiple reasons to conclude otherwise. For one, there appears to be a distinction between "absentee" and "mail-in" voting, and Act 77 apparently only addressed the latter. And the PA Supreme Court case cited by Kelly purporting to strike down absentee voting was based on constitutional provisions which have since been amended.
But here is where procedural questions become relevant to the substantive argument. Is Kelly making this argument in good faith? I have a hard time concluding he is, given that he waited until after his preferred presidential candidate was losing to file this lawsuit. If literally anyone was genuinely concerned about Act 77's constitutionality, I really want to know why they never bothered challenging it. Act 77 explicitly had a provision inviting constitutional challenges (ctrl+F for "The Pennsylvania Supreme Court has exclusive jurisdiction to hear a challenge").
I read the Wisconsin 'indefinitely confined' case. The basic summary is that Wisconsin law allowed voters who are "indefinitely confined" to request an absentee ballot without needing to present photo ID. The issue boils down to what exactly it means to be "indefinitely confined" and who exactly can decide that. The opinion discusses this starting on pg 11. The statute says: "An elector who is indefinitely confined because of age, physical illness or infirmity or is disabled for an indefinite period may by signing a statement to that effect require that an absentee ballot be sent to the elector automatically for every election.[...] If any elector is no longer indefinitely confined, the elector shall so notify the municipal clerk."
I read the opinion and can't see much that I disagree with. They largely agreed with the plaintiffs in this case, and chided county clerks for trying to spin their own interpretation on the law. The overall conclusion is that the law as written puts the onus on each individual voter to make the declaration that they're "indefinitely confined". The supreme court disavowed any attempt to presume that all voters should be deemed "indefinitely confined" because of COVID-19 lockdown orders.
I'm not sure exactly how this opinion got it wrong or exactly what should have happened otherwise?
I found the David Shafer lawsuit here, but it's missing exhibits. It doesn't start making actual allegations until pg 16. One of the first claims it makes is that Georgia allowed "as many as 2,560 felons with an uncompleted sentence to register to vote and cast their vote". I remember this number, because Giuliani made the exact same claim (see pg 19 of the opinion stripping him of his law license). I'm guessing the source of this number is the accountant Bryan Geels who speculated the 2,500 number.
If this is the quality of their evidence, I don't have any confidence on the rest of the claims they made. I think I've spent enough time on this.