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The Self Serving Jill Stein Recount Scam

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ap_514085205775-021470928390Jill Stein, admittedly, always struck me as a bit of a naive and somewhat unhinged candidate. But, Stein was the “Green Party” candidate and, once Bernie Sanders lost, became the go to darling for ill advised voters and activists that were far too willing to wreck the world with Donald Trump than consider the circumstances and vote for an eminently qualified, albeit terribly flawed, candidate in the form of Hillary Clinton. It is hard to argue with anarchist, blow it all up, demagogues when trying to protect a lame, and status quo, candidate. Even when the ultimate opponent is a raging racist, bigoted, misogynistic, female choice hating and torture loving shill like Donald Trump.

So many otherwise Democratic voters went off and voted for Stein and/or Gary Johnson. Did it make the “final difference”? I have no idea, but there is certainly an argument that could be made.

Was it the Jim Comey FBI factor from the stunningly inappropriate rogue actions by the FBI Director putting his self righteous thumb on the electoral scale in both the start of the critical summer elections season and, then, yet again in the last two weeks before the election? It is easy to make that argument, irrespective of any other factor.

Was it that Hillary did not expend personal and campaign time and dime in Wisconsin and other Rust Belt states when she did a lost, but very much growing, cause venue such as Arizona? Easy case for that argument as well.

The actual data and competent reportage seems to indicate that all of the above were significant factors. It strikes me that is right.

All of the above factors fed into the defeat of Clinton and the election loss by her, if only by the electoral college, at the tiny hands of Trump. So be it. That is what happened under the electoral laws and process (yes, let us not forget the pernicious meddling of Russia and/or Wikileaks, whether they are coupled or not) pertinent to the 2016 US Presidential election. But, like the result or not, that was all pursuant to the Constitution and election laws as are currently extant in the United States. There is not one competent piece of evidence that the actual vote itself was “hacked” or “rigged”. Just none.

Which brings us to the much ballyhooed action of Jill Stein to crowd fund and conduct audits and or recounts in the key states of Wisconsin, Michigan and Pennsylvania. The second she started her effort, I opined it was an attention grabbing craven play by Stein, and not a legitimate effort with any eye to any substantive results. On a more private forum I intoned:

But that is the thing: It IS bomb throwing, and stupidly so. There is NO evidentiary basis for fraud or mistake that I have seen. The guy who started it, [J. Alex] Halderman himself, admits as much legally when he says he thinks it is most likely poll inaccuracy, not anything nefarious.

I know all the beaten down, especially Clinton diehards, that cannot fathom how she blew this election, want to grasp for something. But it just isn’t there.

I stand by that completely. What Jill Stein is doing is blatant self promotion, list building, reputational repair where it is undeserved, and slush funding for an incoherent Green Party. It is detestable to the extreme. Stein has glommed onto this recount scam as a way to serve herself, she certainly is not serving anything else.

To quote a significant Democratic election law attorney, and longtime friend of this blog, Adam Bonin:

“If there were something to do here, there are a lot of us who would be jumping on it”

Early on the hashtag #AuditTheVote was attached to this chicanery. Here is the problem with that – two out of three of Stein’s target states already “audit the vote” as a regular matter of law without the need for Stein’s self serving injection into the matter. In fact, Stein’s primary target, Wisconsin, has a reasonably robust random audit provision in Wisconsin Revised Statute 7.08(6), which has been generally deigned to require:

The voting system audit procedures consist of two independent processes: an audit conducted by municipalities of reporting units randomly selected by the State Elections Board and an audit of reporting units conducted by the State Elections Board. Number of Reporting Units to Audit: Per the requirements of section 7.08(6), Wis. Stats., each type of electronic voting system in Wisconsin must be audited after the general election to ensure that each system does not exceed the error rate prescribed in the federal voting system guidelines. The State Elections Board will randomly select fifty (50) reporting units across Wisconsin which will be subject to municipal audit, including a minimum of five (5) reporting units for each voting system used in Wisconsin. If fewer than five (5) reporting units for any voting system are selected through the random selection process, then additional reporting units will be randomly selected by voting system until five reporting units per voting system have been selected. If there are fewer than 5 reporting units using a voting system the State Elections Board staff will audit those reporting units if the reporting units are not selected as part of the random draw. until five reporting units per voting system have been selected. If there are fewer than 5 reporting units using a voting system the State Elections Board staff will audit those reporting units if the reporting units are not selected as part of the random draw.

Well, that is actually pretty robust. And all of which would have been, and will be, performed without the preening self interjection of Jill Stein in her first state of concern, Wisconsin.

Just Wisconsin? Nope. Pennsylvania also has an inherent audit provision, though not quite as robust as Wisconsin. The bottom line is, though, there are already “audit the vote” provisions in two out of three of Jill Stein’s targets, even though she declined to say so in her propaganda seeking funding to stay in the spotlight and reconstruct her reputation. In fairness, Michigan has no such automatic audit provision, so there is that.

Next, you need to consider that there is a substantive difference between “audits” of the vote and flat out recounts. Stein has always been about recounts, despite the bogusly applied #AuditTheVote nomenclature applied by Stein and her glommers on. Recounts are expensive, labor intensive, and time consuming. And they are asinine where there is not a single shred of competent evidence to support fraud or mistake that could, even in the remotest possibility, change the outcome in a given state or states.

And, let us be crystal clear here, there is still NO competent evidence whatsoever of fraud, mistake or other irregularity that could change the result. None. And that is the thing, unless there is fraud, mistake or systematic error, recounts can do nothing to legally support a challenge to the election results. A challenge has to stand up in court. It cannot be thin and based upon rote supposition and suspicion. Even if Stein’s folly turns up a minor discrepancy here and there, that will not suffice.

The vote differential, again in Wisconsin for instance, between Clinton and Trump currently stands at 27,259 votes. Yes, that is less than the total of Stein, so despite the wild claim she threw the election that some Clinton supporters have thrown, I will not. Some Stein voters were never going to vote for Clinton; so while Stein’s vanity run deserves ridicule, it does not, in and of itself, “prove” Clinton would have won but for Stein. Close enough for ridicule given that Trump is the result? Sure. But, again that, too, holds for ridicule of Clinton’s own arrogant and detached campaign and the fatally pernicious effects of the completely rogue arbiter of his own justice, James Comey.

So, where does that leave us? With a Norma Desmond like self promoting grifter, dying to redeem her name and stay in some/any spotlight, in the form of Jill Stein. She was a cancer on the election (hey, her dinner with Putin and Mike Flynn was cool though!) that, at a minimum, helped elect Trump, and she is sticking around to create more hell now that said deed is done.

This is absurd. Jill Stein is a grifter and a fraud. And she is playing this opportunity to, first off, list build for herself and the Greens, secondly, resuscitate her and their name, thirdly, stay in the press, and lastly, create an amorphous slush fund to continue those things. Stein is succeeding beyond wildest expectations if your idea of the normal course of business is Donald Trumpian level grifting.

For a woman who raised only $3.5 million during her entire vanity run for President, Stein has now raised nearly $6 million dollars in far less than a week on this scam. That is NOT because Stein has dedicated Green Party followers wanting to bleed yet more money into their candidate after the election; no, it is because desperate Clintonians are seeking some way, any way, to stop Trump. And playing on that desperation is exactly the fraud of Jill Stein.

A common refrain I see is that, “golly, there is no harm, and much good, that can come from confirming the vote”. But that is just more self serving balderdash from the desperate and/or Stein acolytes. In fact, there is great harm that can come from Stein’s shenanigans. Here is Rick Hasen from the Election Law Blog, quoting the Wisconsin Journal Sentinel:

Wisconsin could be at risk of missing a Dec. 13 deadline to certify its 10 electoral votes if clerks can’t complete an expected recount by then.

Hitting the deadline could be particularly tricky if Green Party presidential nominee Jill Stein is able to force the recount to be conducted by hand, Wisconsin’s top election official said.

Stein — who received just 1% of the vote in Wisconsin — has promised to file for a recount by Friday’s 5 p.m. deadline in Wisconsin. She is also planning to ask for recounts in Michigan and Pennsylvania, which have deadlines next week.

A federal “safe harbor” law requires states to complete presidential recounts within 35 days of the election to ensure their electoral votes are counted. This year, that’s Dec. 13.

What is the upshot of this? Easy, Stein’s effort could easily place Wisconsin, in light of the December 13 deadline, of missing the deadline and disenfranchising all voters in Wisconsin. Yes, there are potential repercussions from actions like Stein is taking, especially when there is no known basis or grounds whatsoever evidentiary wise to support them. And that is just Wisconsin. Michigan and Pennsylvania are in even bigger jeopardy thanks to the self serving hubris of Jill Stein, should she actually continue on to file in those states as promised, without any rational basis for challenging the vote therein.

Lastly, while I have been writing the instant post, the attorney for the DNC and Clinton Campaign, Marc E. Elias, has weighed in on Medium with an official take for both himself and, by all appearances, the aforementioned campaign entities. The Reader’s Digest version, by my eyes, is that, while the DNC and Clinton camps are going to join into the Stein effort, they have never seen any basis for it, and are being dragged into a position of noticing their appearance and joinder simply in order to preserve their rights to be involved should Stein’s group go so far off the rails or, in the remotest of all potentialities, find anything. That is not joinder with enthusiasm, it is joinder to protect your legal voice. Trump is now doing the same for similar reasons. I do not blame either Clinton or Trump for doing so, in fact, Stein’s idiocy put both of said parties in that regrettable posture. Don’t cast your eye askew for one second at Elias and the Dems, nor even Trump and the Repubs, ….Stein and her idiotic self serving publicity play made them do it.

In short, this effort by Jill Stein is nothing more than a self promoting vanity play. If you want to donate to that grift, by all means, go ahead. But don’t blather about how it is going to help democracy or promote fair elections. That is absurd. In fact, just exactly as absurd as Jill Stein’s cynical grift on her current donors who are far different than her few and far between Green donors.

Stein is scamming the dispossessed. That is a Trumpian level fraud.

Trump Is Who He’s Always Been, And Trump Is the Epitome of the GOP; They Have To Own Him

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The Washington Post’s David Fahrenthold has come up with another scoop. While scraping for video clips does not seem to be Fahrenthold’s strength, like the KFile boys who bolted Buzzfeed in the middle of the night for the apparently greener pastures of CNN, this clip posted by the Washington Post is bigger than anything that has come before. It doesn’t matter if it is by weight, timing, or the clear combination of the two, it is simply huge. Game changing.

The most striking thing, however, is not that this video exists, nor that it has emerged to public view, it is that the Republican party worthies and press seem to think it is shocking. Seriously, this information, and the Donald Trump it reflects, is exactly who Donald Trump is, and has been, for decades.

Donald Trump is a once and forever informationally ignorant, self serving jackass extreme narcissist. But he has been that for decades to anybody paying attention. Trump was the leader from the start in the Republican primary, and was the easy winner of their nomination. Why? Because the votes on the ground count, much to the consternation of supposed “sane party elders”, and the votes on the ground made Trump an easy winner. He is exactly what the current Republican GOP party embodies at its heart.

Watching holier than though instant moral compasses (well oiled craven weathervanes?) like Jason Chaffetz, Mitch McConnell, John McCain, Mitch McConnell, Orrin Hatch and Paul Ryan squirm and proclaim their shock, like grubby kids with their hand stuck in the cookie jar, is hilarious. What convenient souls they are to suddenly have the inclination of what they have all sowed and reaped for years. They doth protest too much; Trump is them, and they are Trump.

I came home late, but still managed to hear at least two tellings of the story of how John Rhodes, Barry Goldwater and Hugh Scott went down the Hill and gave the hook to Nixon when it was time, with the ideation that such a similar scene could end the Trump moment now. Those are the crazy fever dreams of people like Chris Matthews, David Gergen, Mark Halperin and the rest of the Beltway cocktail weiner gobblers.

Not gonna happen. Rhodes, Goldwater and Scott were men of a different time and more stout character. There are no analogues today. Jason Chaffetz and Mike Lee can conveniently preen and bluster all they want. It is bullshit, as it is with almost all of the rest of today’s Republican party. They do NOT get to suddenly walk away from the monster their party has spent decades creating. They own Trump, Hannity, Roger Ailes, Fox News, Breitbart and Limbaugh. It is who they are, and nobody should forget it.

The Republican party of today has relentlessly stood against women’s rights and ability to control their own bodies, equal rights and protections for LGBT citizens, fair treatment for minorities and immigrants, and the right to vote for anybody other than middle aged fat white men. The current Republican party think that they are the only “suspect class” due “equal protection”, and not the minorities, races, genders, sexual identities and other endangered classes the civil rights laws were designed to protect.

This is exactly what makes the instant kvetching in the GOP aisle over Trump last night so fatuous. It is a boatload of opportunistic self serving fraud. Not for one second should anybody accept that Trump is the sudden exception, he is unequivocally what the GOP has been growing into for years. The modern Republican party has long championed racism, bigotry and misogyny; Donald Trump is just the point of their spear. To the extent there are any “honest brokers” left in the GOP, they are still guilty of benign neglect that allowed the ugliness that is the Trumpian GOP to fester.

The GOP cannot run from Donald Trump, he is who they are now. The last minute panicked contrition of the very women blaming and shaming, racists, bigots and oligarchs that claim to speak for the GOP cannot shed the snake skin of who they are, and what they have created.

Oh, and by the way, the fever dreams of the Chris Matthews and Mark Halperins of the pearl clutching Beltway set are not going to get their wish. It is too late for Trump to be replaced on the ballot by the grand poohbahs of the GOP. As election litigator extraordinaire Marc Elias points out, the ballots for the military and overseas voters have already been sent out pursuant to the UOCAVA, i.e. the Uniformed and Overseas Citizens Absentee Voting Act. Locally, the Arizona ballots are putatively at the printers and being mailed out within five days. Many other states are either on that timetable or ahead of it. In short, the voting has begun. The die is cast.

Also, via Philip Bump and Dave Weigel of the Washington Post:

More than 34,000 Republican voters have already cast their ballots for the 2016 general election according to the U.S. Election Project, 8,000 of them in the battleground state of North Carolina and another 5,000 in Florida. Not all of those ballots were cast for Donald Trump, it’s safe to assume, but it’s more than likely that most of them were. And that, in a nutshell, is why it’s far too late for the Republican Party to dump Donald Trump from their ticket.

More from Bump, Weigel and the WaPo:

Josh Putnam, a University of Georgia lecturer and expert on the machinations of the parties, told me at the time that the rule at issue was Rule 9. Rule 9 reads:

The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.

Death, declination or otherwise. No “because we want to” clause.

“Let’s be clear here: The rule is intended to fill vacancies, not to lay the groundwork for a replacement,” Putnam said. “Some have speculated that ‘otherwise’ is ambiguous. Taken out of context it is. However, under the provisions for filling vacancies, it clearly fills in any gap between death and declination (i.e.: an incapacitating illness, but one that leaves the nominee neither dead nor able to decline to run further). And that was the intention.”

Weigel and Bump are superb reporters, and put up a compelling article on a short deadline. But, when it comes to election law, there is nobody better than Rick Hasen. Rick actually contemplated this scenario back in August, over two months ago, when the switch would have been far easier than it is now with ballots already outstanding. His conclusion was that it would be beyond difficult. And that was then, much less now.

But what if the ballots stood as is, could the GOP “electors” find the unanimity to cast enough electoral votes for some person other than Trump? Hasen, at his excellent “Election Law Blog” linked to some thoughts on that effectively imaginary scenario by Ned Foley:

As I write this on Friday night October 7, there is renewed talk of GOP leadership disavowing Trump. True, Trump will still be on the ballot that we citizens cast. But suppose the GOP leadership publicly announces that it will ask GOP electors, when they meet and vote on 12/19, to cast their presidential vote for Pence. Then some GOP-leaning superPACs spend a lot money before 11/8 informing voters of this plan.

Suppose this plan is successful, insofar as it causes on Election Night, 11/8, the media to announce that GOP electors were chosen in enough states to amount to 270 Electoral College votes. Then on 12/19, the GOP electors all do as intended according to this plan: they cast their official Electoral College votes for Pence, not Trump. Pursuant to 3 U.S.C. 9-11, these electors all sign their certificates showing Pence as their choice and send the certificates to Joe Biden, as President of the Senate.

Now, someone might claim that some of these electors violated a previous pledge they made to cast their Electoral College votes for Trump. Maybe this claimant even arranges to send to Biden a separate set of Electoral College votes cast by replacement electors who were substituted because the faithless electors violated their pledge. (This move would be reminiscent of 1876.) We can assume that the claimant wouldn’t send to Biden 270+ Electoral College votes for Trump, but some number short of 270 in the hope of depriving Pence of the presidency.

What would happen when Biden receives two conflicting sets of Electoral College votes from some states, one set for Pence, and the second set for Trump?…

Long story short: There is no way out from Trump for the GOP. They are stuck, and they got there the old fashioned way: they earned it. The Republican Party cannot hide form this event or pretend it is a mistake. It is the culmination of where the Republicans have been headed since the days of Nixon and Lee Atwater. The GOP has tried to mask it with duplicitous bleating about social conservancy and family values, but the truth is out now. It is all about preservation of white bigotry and privilege, and shifting of income and wealth to oligarchs and corporations. When Trump feigned to support that, and the maintenance of women in second class subservient status, the Republican party was willing to ride that horse. Now they want off. Don’t let them.

It is time for change, and that will not, and cannot, be furthered by letting the party of bigotry, hate, misogyny and income inequality off the hook because their avatar has been exposed.. Make them own what they built and earned.

A Big Day at SCOTUS on Obamacare and Fair Housing

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JusticeA little more than two hours ago, a fairly monumental day at the Supreme Court got underway. Two big boxes of opinion were brought out signaling at least two, and perhaps as many as four, new decisions were going to be announced. It was only two, but they are huge and critically important decisions King v. Burwell, better known as the “Obamacare case”, and Texas Dept of Housing v. Inclusive Communities Project, better known as the Fair Housing case.

Both King and Texas Housing are big, and both have been the cause of serious apoplexy and fear among liberals and progressives. And both were decided very much in the favor of the liberal position, so it was a very good day on both issues.

First off is King v. Burwell, and the full opinion is here. It is a 6-3 opinion written by Chief Justice Roberts. Many people seem shocked that the majority was 6-3. I am not. While I thought the challenger King plaintiffs had a cognizable legal argument, it always struck me as a losing one, and one the Chief Justice was unlikely to sign off on after his sleight of hand to keep the ACA alive in the earlier NFIB case.

Similarly, though Anthony Kennedy was a bigger concern because of his states rights history, he has a long history on protecting citizens on social justice issues (which is why we are about to get marriage equality, maybe as soon as tomorrow). And, once Obamacare was upheld in NFIB, and all the millions of additional Americans had been given health insurance access (which, let us keep in mind, is still different than actual healthcare), it really became a social justice issue, and thus one Kennedy would be very troubled to strip away.

As to the general overview, Rick Hasen at Election Law Blog has a great summary:

Before the case, so much ink was spilled (and more virtual ink virtually spilled) on the question of deference to the IRS’s interpretation of ambiguity under the statute (under the so-called “Chevron” doctrine) as well as principles of federalism, which were used to argue for results for and against the Administration in the case. There were also questions about the standing of various plaintiffs. There were arguments about the intent of the drafters, and what MIT economist Gruber said, or may have said, or may have misspoken about the way the law was supposed to work. In the end, the Court rejected application of Chevron deference to the IRS and federalism made no appearance. Nor did standing or Gubert get discussed. Instead the Court’s analysis went basically like this:

The question whether tax subsidies applied to poor people in states that did not set up their own health care exchange is important, so important that it is hard to believe that Congress would have delegated that question to an agency (and particularly to the IRS, whose job it is to collect revenue not design health care policy). So there is no “Chevron” deference on the question. The court has to use its tools of statutory interpretation to decide the case. The law, read as a whole, is ambiguous. It is certainly possible to read the challenged language as giving subsidies only to people in state exchanges and not in the federal exchange. But there are other parts of the law, read in context, that only make sense if subsidies apply to those in state or federal exchanges. In such an ambiguous case, it is the purpose of the law that should govern. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

Go read all of Rick’s post, it is also notable for its explanation as to why King is likely the last word on the ACA as a viable entity and Obamacare is here to stay. I concur.

I would like to point out one aspect of the King decision I find particularly rewarding – the lack of attention to all the extrinsic noise that has been generated over the many months the King case was pending by all the crazed pundits on both sides of the issue at heart. Absent was all the relentless sturm and drang about standing, loss of standing, federalism, what Hans, err Jon, Gruber said or didn’t say, post hoc interviews with Congress members, their staff and lobbyists and what it meant, and all other sundry sorts of faux legislative history by people that apparently would not recognize real “legislative history” if it hit them in the butt. That is very satisfying thing for somebody that thinks appellate decisions should, at their core, be based on the statutes, precedence and the record on appeal.

For this I am thankful for the clarity and cleanliness of Roberts opinion. As a side note, the majority’s scuppering of the Chevron basis has created a side issue among us in the legal chattering class as to whether it signals a weakening of the “Chevron Doctrine”. Rick seems to think there is a fundamental weakening here. I am not so sure of that at all, even though I have had sincere problems with Chevron pretty much as long as I have been practicing law, as it gives far too much deference to often out of control administrative agencies, and the appellate burden is very onerous to overcome bad administrative rulings.

We shall see how the components of today’s decision in King play out in the future, but it was a very good day for the law, and the ACA, today.

The second, and also huge, case handed down today is the Texas Fair Housing decision, and the full opinion is here. Although it will be overshadowed today by the more famous (infamous?) King Obamacare decision, the Texas case is absolutely critical to the ability to fight and control discrimination.

As the excellent Lawrence Hurley reports for Reuters:

On a 5-4 vote in a major civil rights case, the court decided that the law allows for discrimination claims based on seemingly neutral practices that may have a discriminatory effect. Justice Anthony Kennedy, a conservative who often casts the deciding vote in close cases, joined the court’s four liberals in the majority.

The ruling also was a triumph for President Barack Obama and his administration, which had backed Inclusive Communities Project Inc, a nonprofit group in Texas that claimed the state violated the law by disproportionately awarding low-income housing tax credits to developers who own properties in poor, minority-dominated neighborhoods.
…..
Although a broad win for civil rights advocates on the legal theory, Kennedy, writing for the court, indicated in the ruling that the Texas plaintiffs could ultimately lose when the case returns to lower courts.

The court was considering whether the 1968 law allows for so-called disparate impact claims in which plaintiffs only need to show the discriminatory effect of a particular practice and not evidence of discriminatory intent. There was no dispute over the law’s prohibition on openly discriminatory acts in the sale and rental of housing.

Kennedy wrote that Congress indicated in 1988 when it amended the law that it intended disparate impact claims to be available.

“It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification,” Kennedy added.

Kennedy also made clear there are limits to the types of claims that can be brought, saying that “statistical disparity” alone is not enough. Plaintiffs must “point to a defendant’s policy or policies causing that disparity,” Kennedy added.

As Adam Serwer said on Twitter (here and here), “banks and insurance companies have been trying to tee up this case for years because they thought the Roberts court would rule in their favor” and “without this law, it’s unlikely any of the banks would have paid any price for trapping minorities in bad loans regardless of credit”. That is right. But it goes further than that, the “disparate impact” claim is one of the most important tools available to fight discrimination that may not be apparent on the face of a cagily crafted provision or business model policy, but which nevertheless is effected by it. Discriminatory animus has gotten very sophisticated, and this tool under the Fair Housing Act of 1968 is necessary to have to fight it.

Texas Fair Housing was a 5-4 decision authored, somewhat surprisingly, by Anthony Kennedy where he joined the four justices of the “liberal bloc”. It is yet another indication of where Tony Kennedy is on “social justice” issues, again a trend that augurs well for marriage equality. We shall know soon enough!