NYT op-ed on Congress's role counting electoral votes

I have this op-ed in today’s New York Times, “Democrats Have Been Shameless About Your Presidential Vote Too.” It begins:

As Republicans in Congress prepare to formally contest the outcome of the 2020 presidential election on Wednesday, many of them have cited precedent for their effort: similar complaints lodged by Democrats in other presidential elections. After Republican victories in 2000, 2004 and 2016, for instance, Democrats in Congress used the formal counting of electoral votes as an opportunity to challenge election results.

But the history of Democratic efforts to contest the outcomes of presidential elections is not a history worth emulating. On the contrary, it only underscores that the certification of a president-elect’s victory by the House and Senate is an improper forum for the airing of political grievances and an inappropriate occasion to readjudicate the decisions of the states concerning things like vote tallies, recounts and audits.

Four distinct paths for congressional Republicans in counting electoral votes

A lot of commentary over the last few weeks about Congress’s role in counting electoral votes that treats the decisions of members of Congress as binary: count, or object to counting. In reality, it’s a more subtle suite of options available to Republicans. There’s one option to count without protest formal, one option to count with some formal protest, and two options to refuse to count with some formal protest. Each could come with nuances depending on the state or the political situation. And there might be other objections other than “reject the counting of electoral votes,” but I’ll use that as shorthand for now. (And one could, of course, not vote, which adds further nuance, which maybe should be treated closer to a “nay” vote.)

Option One: Refuse to sign an objection, vote “nay” to rejecting the counting of electoral votes.

This is the most straightforward path that most Republicans and Democrats haven taken in 1969 and 2005 when objections were lodged and needed to be voted upon. One could take to the floor and express sympathy with the objection (as many Democrats did in 2005), but still refuse to sign onto the objection and vote “nay” at the end (i.e., vote in favor of counting the electoral votes).

Option Two: Sign an objection, vote “yea” to rejecting the counting of electoral votes.

This is the path of Senator Barbara Boxer and Representative Stephanie Tubbs Jones, the only two who signed an objection to Ohio’s electoral votes in 2005. (And it was the position of 42 members of Congress in 1969.) Those who are filing an “objection” ensure two hours’ debate on that state’s electors. At the end of the debate is a vote on the objection. Typically, of course, if you signed the objection, you’d probably vote in favor of the objection. Typically—more on that in Option Four.

Option Three: Refuse to sign an objection, vote “yea” to rejecting the counting of electoral votes.

It only takes one senators and one representative to prompt two hours’ debate on a state’s electoral vote. Some members of Congress might hang back, then vote in favor of the objection at the end. While Ms. Tubbs Jones was the only signatory to an objection in 2005, 30 other House Democrats joined her in voting “yea” to reject counting of Ohio’s electoral votes.

Option Four: Sign an objection, vote “nay” to rejecting the counting of electoral votes.

This may seem like the strange scenario. Why sign the objection, then vote against it? But that happened in 1969. Senator Hugh Scott voted against his own objection. He signed the objection then voted "nay" on it. Representative William St. Onge & Senator Warren Magnuson signed the objection but did not vote (Magnuson at least was "absent on official business"). It’s possible that some members of Congress just want a two-hour window to air their grievances by means of the objection, then at the end of the day still vote to count the electoral vote.

*

There are more subtle permutations, there are alternative ways of looking at these votes, and it might vary by state. But these, I think, are four distinct paths for voting. (Of course, at the end of the day, no objection will be successful—maybe a topic for another time.)

Ted Cruz misreads the history of 1876 in his bid to secure Acting President Nancy Pelosi

Senator Ted Cruz is the latest to lead a charge in Congress to object to counting to electoral votes from some states. It’s on the heels of embarrassing efforts by other Republicans, which is on the heels of other embarrassing efforts by Democrats in 2001, 2005, and 2017.

But Mr. Cruz’s proposal holds its own unique flaws I’ll lay out. First, it misunderstands a historical example he cites as precedent. Second, its timeline would ensure that Representative Nancy Pelosi, the presumptive Speaker of the House, would have the opportunity to serve as Acting President.

Mr. Cruz’s press release, on behalf of several other senators, provides in the relevant part:

The most direct precedent on this question arose in 1877, following serious allegations of fraud and illegal conduct in the Hayes-Tilden presidential race. Specifically, the elections in three states—Florida, Louisiana, and South Carolina—were alleged to have been conducted illegally.

In 1877, Congress did not ignore those allegations, nor did the media simply dismiss those raising them as radicals trying to undermine democracy. Instead, Congress appointed an Electoral Commission—consisting of five Senators, five House Members, and five Supreme Court Justices—to consider and resolve the disputed returns.

We should follow that precedent. To wit, Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission's findings and could convene a special legislative session to certify a change in their vote, if needed.

Accordingly, we intend to vote on January 6 to reject the electors from disputed states as not ‘regularly given' and ‘lawfully certified' (the statutory requisite), unless and until that emergency 10-day audit is completed.

(Set aside the necessity of an “emergency” audit in a presser January 2 from an election held November 3.)

How does an emergency 10-day audit happen? Congress would need to enact a statute to amend the Electoral Count Act of 1887 before January 6, when it's compelled by law to meet. That seems unlikely. Indeed, the presser suggests that they will object pursuant to the “statutory requisite,” having a stronger view of the Act than some others have written about. By its terms, any objections to a given state’s electors cannot yield debate lasting longer than two hours. There are fixed periods for adjournments, including a ban on any recess after five days. That means Congress would need to enact a new statute.

Mr. Cruz hasn’t publicly released any such draft. So the first stage is to get a statute drafted. It then has to go through both houses of Congress (including whatever filibuster rules make their way in the Senate) and secure the president’s signature.

The “commission” he envisions is not the same as the commission of 1877. That commission had the power to “resolve the disputed returns.” That was crucial to the commission’s work because of how electoral vote counting arose before the Electoral Count Act was enacted.

Before the Electoral Count Act, both Houses had to affirmatively agree to count votes. In 1873, for instance, one house refused to count votes cast for Horace Greeley, who had died before the Electoral College convened. If one house refused, the votes weren't counted—and in 1873, one house didn’t want to count votes for Mr. Greeley, so they weren’t counted.

The thick of Reconstruction was causing greater rifts in Congress and in the states. Electoral vote counting in 1873 was messy, including the decision to throw out votes from Arkansas and Louisiana—Louisiana, in particular, because some in Congress believed it lacked a republican form of government at the time. Lynchings of Black voters and the Colfax massacre were just a couple of the egregious acts occurring in the South.

In 1876, things were still messy, and the presidential election was extremely close. Democrats controlled the House, and Republicans controlled the Senate.

Republican electors, in favor of continuing Reconstruction, carried Florida, Louisiana, and South Carolina from the canvass, but alternative Democratic slates of electors also cast votes—in Florida with the assent of the attorney general and later the legislature, but in South Carolina with little legal authority. By today’s terms, the Republican slates were the “valid” ones. Both sides complained of fraud—the losing Democrats complained more, obviously.

When presented to Congress, the problem was that neither house would agree in a hyper-partisan atmosphere. The House would vote to count the Democratic electors, and the Senate the Republican electors. A dispute resolution mechanism was needed.

Enter the “commission.” It was maybe the best solution at the time because both candidates and both houses of Congress agreed to it.

The Commission would resolve any stalemate that might otherwise arise in Congress. The Commission was given the "same powers" as Congress, & its decisions could only be overridden if both houses of Congress agreed. (That wasn't just to "audit" & let the states know what happened. It was to, as Cruz notes, "resolve the disputed returns.")

The Commission, in a series of 8-7 votes, affirmed the Republican electors.

Importantly, the Electoral Commission wasn't principally created to investigate "allegations of fraud." It was created to resolve disputes to prevent electoral votes from getting thrown out because of disagreement between the two houses. Allegations of fraud confused the process, undoubtedly.

But it’s also a reason why Congress enacted the Electoral Count Act of 1887—to improve the process for counting electoral votes to prevent this problem again! Some highlights of the Act:

-When the president of the senate reads a state's votes, there can be an objection, but both houses have to vote to sustain it. That’s a presumption in favor of counting and prevents deadlock scenarios.

-If there's more than one slate of electors, each house votes, and if they agree they count that slate. If they disagree, they count the slate with the governor's signature. Again, a presumption in favor of counting, and a presumption of deference to any state canvass, recount, & contest.

-The Act also fixed limited times with circumscribed opportunities to object to prevent prolonged investigations into counting electoral votes. Again, given that the commission ultimately ratified what the initial state process yielded anyway, debate would be limited.

Mr. Cruz’s putative commission ignores all of these benefits to revert to the 1877 process—and a process that wasn’t principally driven by investigations of fraud.

Let’s set all this aside for a moment. The Constitution fixes the end of the terms of office of president and vice president for noon January 20. Mr. Cruz calls for a “10-day audit.” So between now (as I write, January 3) and January 20, here’s what would need to happen:

-A congressional statute (noted above), drafted, approved in each chamber of Congress, and signed by the President.

-An ensuing 10-day period of time, pursuant to that statute, to investigate allegations in some unspecified number of states.

-A report filed to “individual states” with time to “evaluate” the findings.

-A subsequent opportunity for states to “convene a special legislative session to certify a change in their vote, if needed.”

-An opportunity after that, which Mr. Cruz does not mention, for states to convene a new slate of electors to cast a new set of electoral votes, in the event that some new slate was certified as the true winner.

-A meeting of Congress to count the new set of electoral votes.

That cannot happen by January 20, Mr. Cruz’s statement asking for “[a] fair and credible audit-conducted expeditiously and completed well before January 20” notwithstanding. If that does not happen by January 20, then Ms. Pelosi, if she resigned from her office (and she might, as she might be able to run again quickly in an ensuing special election) would serve as “Acting President.”

Of course, no one is taking Mr. Cruz’s proposal seriously. Not even himself, as he writes, “We are not naïve. We fully expect most if not all Democrats, and perhaps more than a few Republicans, to vote otherwise.”

But it shows how poorly, even as a fundraising tool for Mr. Cruz’s 2024 presidential campaign, he has thought out his plan.

In 2005, 32 Democrats in Congress attempted overturn the results of the presidential election by objecting to Ohio's electoral votes

On the heels of news that some Republicans in Congress will object to counting electoral votes from certain states when Congress convenes to count electoral votes January 6, 2021, we have an opportunity to reflect on the last failed objection in Congress during the counting of electoral votes: that of Ohio’s electoral votes, disputed in 2005.

Senator Barbara Boxer continues to perpetuate a mythology about the moment that many are uncritically repeating: as she recently explained, “Our intent was not to overturn the election in any way. Our intent was to focus on voter suppression in Ohio.”

Congress could, of course, hold hearings about voter suppression in Ohio (which it did), or introduce or enact legislation pertaining to federal voting rights.

But in the joint session, an objection filed under the Electoral Count Act is specific. It is an objection to counting the electoral votes from that state.

George W. Bush received 286 electoral votes, including 20 from Ohio, a state he won by around 118,000 votes over John Kerry. A candidate needs a “majority of the whole number of electors appointed,” or 270 electoral votes, to win the presidency. If a candidate fails to get a majority, the election is thrown to the House of Representatives, where each state receives one vote, and it chooses among the top three vote-getters.

When Ms. Boxer and Representative Stephanie Tubbs Jones filed an objection, here’s what they formally provided, as printed in the Congressional Record:

We, a Member of the House of Representatives and a United States Senator, object to the counting of the electoral votes of the State of Ohio on the ground that they were not, under all of the known circumstances, regularly given.

If the objection were sustained, it would throw out Ohio’s 20 electoral votes—which represented the preferences of more than 2.8 million voters who supported Mr. Bush in the state.

Tossing out Ohio’s electoral votes would have dropped Mr. Bush to 266 electoral votes. In that scenario, it is likely that Mr. Bush would have failed to have a “majority of the whole number of electors appointed”—that is, the Ohio electors had been appointed, but their votes were deemed not “regularly given” and not counted. Mr. Bush would have been denied the presidency from the Electoral College. And the election would go to the House of Representatives to choose among Mr. Bush, Mr. Kerry, and John Edwards (who received one electoral vote for president, despite being Mr. Kerry’s vice presidential candidate).

The objection, then, was not an abstract proposition, a chance to discuss voter suppression, a two hour debate session. It was a formal request to throw out Ohio’s electoral votes.

One can read through the congressional record to find a report filed by Representative John Conyers of the House Judiciary Commtitee, including “ample grounds for challenging the electors from the State of Ohio.” A conclusion of the report opined, “We believe there are ample grounds for challenging the electors from Ohio as being unlawfully appointed,” including violations of state law, voting machine irregularities, and denial of access to election observers in the election process.

Many in Congress admitted that the debate would not change the outcome of the election. But admitting that it would not change the outcome of the election is different from still seeking to do so.

After two hours’ debate, each house voted on the question about whether to agree to the objection—that is, whether to object to counting the electoral votes from the state of Ohio. It failed in the House 267-31, and in the Senate 74-1.

But those 32 members of Congress (all Democrats) still voted to reject the counting of Ohio’s electoral votes. It might have been a doomed effort. But their votes were actually cast in an attempt to toss out the vote as reported by the state of Ohio. To say “our intent was not to overturn the election,” but to cast a vote that seeks to overturn the election, is nonsensical.

It’s also a reason I’m very down on some Republicans’ efforts to do so in 2021. Tossing out a state’s electoral votes is a big deal. It’s not merely some chance to talk about state law, election irregularities, or tech giants. It’s the request to throw out election results.

I don’t believe there were grounds to toss out Ohio’s votes in 2005, and I don’t believe there are grounds to toss out any of the certified electoral vote totals from states in 2021. I’m sure some favor the Democrats’ approach in 2005 and not the Republicans’ approach in 2021, or vice versa; some will make factual or legal distinctions between the two; some will find some whatabout-isms to cite. I’m not particularly interested in that. I think both efforts are embarrassing. But I want to provide the context about what formally occurred in 2005, rather than merely parroting the media lines of the politicians involved.

Should Kamala Harris participate in disputes over the counting of electoral votes in Congress?

Only twice since the Electoral Count Act of 1887 has Congress entertained formal objections to the counting of presidential electors. If a member of the House and a member of the Senate file a written objection to a state’s presidential electors, each house would separate and deliberate for two hours before voting on the objection.

Senator Kamala Harris of California is the vice president-elect. She can remain in the Senate until she resigns (presumably some time before January 20). The counting of electoral votes is January 6. Should she participate in any votes on any objections?

I say should because I think she can. It’s simply a political decision.

The Twelfth Amendment (and before that, Article II) puts the President of the Senate—the Vice President—in charge of opening electoral college certificates when the votes are counted in Congress. There’s obviously a conflict of interest where the vice president is a candidate—see Thomas Jefferson in 1800, for one, even before the Twelfth Amendment—but the Constitution firmly places this person in this position. Indeed, it’s perhaps made certain losses easier with a gracious loser—Richard Nixon in 1960 and Al Gore in 2000, to name two. Vice President Mike Pence will preside (in his absence, the responsibility would fall to Senator Chuck Grassley), and he, of course, has an interest in these objections, as many vice presidents have before him. But the vice president has played a fairly small role in recent years—Mr. Nixon’s request for unanimous consent to the counting of Democratic electors in Hawaii over a rival slate of Republican electors an outlier, but, one that was against his self-interest and one that expressly sought the consent of Congress.

In both objections lodged since 1887, however, we’ve seen Senators with a stake in the outcome potentially participate. One did participate, one deliberately chose not to.

First, in 1969, a faithless elector in North Carolina had voted for George Wallace instead of Richard Nixon. Members of Congress objected to determine whether to count the vote. Senator Edward Muskie was the losing vice presidential candidate, the running made of Hubert Humphrey. But it was Mr. Muskie, a member of the Senate, who actually signed the objection requesting that the vote for Mr. Wallace not be counted, on the grounds that it was not “regularly given.” In the end. Mr. Muskie voted on the losing side of the objection, as the objection failed in both chambers and the vote for Mr. Wallace was counted. (Incidentally, the losing presidential candidate, Hubert Humphrey, was the vice president and did not preside over the counting of electoral votes, as he was attending a funeral overseas.)

Second, in 2005, Senator Barbara Boxer and Representative Stephanie Tubbs Jones filed an objection that Ohio’s electoral votes were not regularly given. They would have refused to count the 20 electoral votes for George W. Bush and Dick Cheney. The losing candidate, Senator John Kerry, would have been the beneficiary of the objection. But, as reported in a statement printed in the Congressional Record, “I do not believe that there is sufficient evidence to support the objection and change the outcome of the election and I am not joining their protest of the Ohio electors.” It was printed, because Mr. Kerry did not attend the session and did not vote. (He opted to travel to the Middle East to meet with soldiers.) As Senator Mitch McConnell put it at the time, “Senator Kerry said that he would not participate in this petulant protest.”

One political principle, then, that unites these episodes is that Mr. Muskie voted in a way that would have been adverse to his interest as a candidate, and Mr. Kerry refused to participate in a process that would benefited his interests. (Of course, Mr. Kerry might have participated and voted “no” on the objection.) And it might be, then, that Ms. Harris should not participate in a vote that would be beneficial to her interests.

But, that’s for her to decide. This post is simply to note the political process as it’s played out previously. Again, Ms. Harris emphatically can vote on these objections on January 6. The Senate is closely divided on a partisan basis, but, like 2005’s vote that yielded a 74-1 rejection of the objection, I do not expect any votes to be particularly close.

But if she does participate, and if she votes in a way that benefits her candidacy, it would be a contemporary first under the Electoral Count Act.

New lawsuit perpetuates falsehood that Arizona legislature "endorsed" rival slate of electors

Earlier, I highlighted the erroneous assertion in some legal briefs that a state legislature has “endorsed” some rival slate of presidential electors. A new lawsuit from Arizona filed in Texas does the same, and more.

Here are some allegations from the complaint:

The Arizona Electors have cast Arizona’s electoral votes for President Donald J. Trump on December 14, 2020, at the Arizona State Capitol with the permission and endorsement of the Arizona Legislature, i.e., at the time, place, and manner required under Arizona state law and the Electoral Count Act.

As I explained earlier, “‘Permission’ to appear in the state capitol is no more an endorsement than allowing any group of tourists to step foot in the capitol and engage in some kind of activity.” It also is not clear that the legislature, as a legislature, endorsed such an activity.

The more deceptive claim is here:

On December 14, 2020, members of the Arizona Legislature passed a Joint Resolution in which they: (1) found that the 2020 General Election “was marred by irregularities so significant as to render it highly doubtful whether the certified result accurately represents the will of the voters;” (2) invoked the Arizona Legislature’s authority under the Electors Clause and 5 U.S.C. § 2 to declare the 2020 General Election a failed election and to directly appoint Arizona’s electors; (3) resolved that the Plaintiff Arizona Electors’ “11 electoral votes be accepted for … Donald J. Trump or to have all electoral votes nullified completely until a full forensic audit can be conducted;” and (4) further resolved “that the United States Congress is not to consider a slate of electors from the State of Arizona until the Legislature deems the election to be final and all irregularities resolved.[n. 11]

n.11: See Ex. A, “A Joint Resolution of the 54th Legislature, State of Arizona, To The 116th Congress, Office of the President of the Senate Presiding,” December 14, 2020 (“December 14, 2020 Joint Resolution”).

(Note that Exhibit A includes only 4 pages, not 5, which is the total number of original signatories. You can see that Twitter thread here. It appears the plaintiffs may have accidentally included only the 4 images in the first Twitter post without scrolling down to the second post.)

“Members” of the legislature are distinct from the legislature. They cannot “pass” a “Joint Resolution” under state law unless they go through the lawmaking process. It is not a “Joint Resolution” under any recognized authority of the state legislature, except that these lawmakers want it to be so.

A review of the signatories shows 17 members of the 60-member house, and 5 members of the 30-member senate, which means that it fails majority requirements in both chambers (of course, the presence of a quorum may mean fewer than all members present).

It’s also signed by 8 members-elect, who, of course, are not a part of the legislature right now and cannot engage in the lawmaking function.

And the “joint resolution” has no bill number and is not enrolled in any journal. No roll call was taken. No legislative session was established by any entity.

These members of the legislature are so strongly advancing the independent state legislature doctrine while simultaneously undermining legislative claims by asserting legislative power in contexts where the legislature is not acting.

UPDATE January 1, 2021: A similar falsehood was included regarding Michigan’s electors in a motion to intervene in Gohmert v. Pence. Here are the allegations:

Intervenors include portions of the slate of Republican Presidential Electors for the State of Michigan. Intervenors have cast their Presidential electoral votes for the State of Michigan for President Donald J. Trump on December 14, 2020, at the Michigan State Capitol with the permission and endorsement of the Michigan Legislature, i.e., at the time, place, and manner required under Michigan state law and the Electoral Count Act.
...
On December 14, 2020, pursuant to the requirements of applicable state laws and the Electoral Count Act, Intervenors, with the knowledge and permission of the Republican-majority Michigan Legislature, convened at the Michigan State Capitol, and cast Michigan’s electoral votes for President Donald J. Trump and Vice President Michael R. Pence.

Scrutinizing one voter fraud allegation: did 42,000 people vote more than once in Nevada in 2020?

A recent conversation with a friend led me to investigate, with some specificity, the origins and sources of some of the voter fraud claims from the 2020 presidential election. Isolated instances of fraud exist in every election. Occasionally, more systemic fraud exists, like North Carolina’s Ninth Congressional District in 2018. But to find such widespread fraud at scale, in so many states, strains credulity.

But this is a hard point to raise. Many cite “irregularities” as evidence of fraud. But I think “irregularities” are a starting point to investigate fraud. And what’s happened in our elections discourse is that, too easily, “irregularities” are treated as proof of fraud, and the investigation into those irregularities receives much less attention.

I drilled deep into one specific claim with a friend to make this point—a claim that had a thorough judicial examination (as many such claims never even make it to court for standing concerns, laches, or other procedural defenses of bars). Did 42,000 people vote more than once in Nevada in 2020?

Here’s the most recent popular origin of the claim, courtesy of testimony before the Senate Homeland Security and Governmental Affairs Committee, as relayed by Jesse Binnall, December 16, 2020:

The election was inevitably riddled with fraud and our hotline never stopped ringing. While the media and the democrats accused us of making it all up, our team began chasing down every lead. Our evidence came both from data scientists and brave whistleblowers.

Here is what we found:

Over 42,000 people voted more than once. Our experts were able to make this determination by reviewing the list of actual voters and comparing it to other voters with the same name, address, and date of birth. This method was also able to catch people using different first name variations, such as William and Bill, and individuals who were registered both under a married name and a maiden name.

This is a specific claim, and it allows us to trace its origin. Binnall’s lawsuit in Nevada state court, Law v. Whitmer, relies on the expert report of Jesse Kamzol. (An expert report is something you file with the court and with the opposing counsel to give them a chance to determine if your expert is reliable and so one, meeting all the rules of evidence.)

Here's an excerpt from Kamzol's report:

Duplicate Voter Registrations:

I identified 42,284 voters who appear to have voted twice in the 2020 general election. This list includes individuals that have the same name, address, and birthdate, and that voted multiple times. All these voters had multiple voter registration numbers associated with substantially the same name, birthdate, and address. There are a few variations within this list because of first name deviations, i.e. Bill and William, but all 42,284 voters have multiple data point matches including birthdates from which I conclude with a reasonable degree of certainty that these duplicate voters are each one and the same individual."

It’s worth opening that this allegation of double voting comes from duplicate voter registrations, which has two complications worth considering. First, are the voter registrations themselves actually duplicates? Second, is there evidence that those who appeared to vote twice actually do so?

At the outset, however, Binnall wrongly characterizes Kamzol's report. Kamzol qualifies with "appears," while Binnall does not. (Nevertheless, Kamzol does conclude with a "reasonable degree of certainty that these duplicate voters are each one and the same individual.")

Kamzol says that the list "includes" individuals "that have the same name, address, and birthday," while Binnall states that the determination is made "comparing it to other voters with the same name, address, and date of birth." Kamzol says that "multiple data point matches" are his parameters. It's not clear what "multiple data point matches" mean.

It’s not clear, because Kamzol's report is very brief and lacks explanation about his methodology. (Go check it out.) A good study published this year in the American Political Science Review recounts some of the difficulties in state data in trying to identify actual duplicates and the rigor that goes into assessing irregularities in what appear to be, on their face, duplicates. Dig into this for rigorous methodology--methodology not explained in Kamzol's report.

In short, Kamzol's report offers a beginning for investigation. It is not the end in itself. And when pressed under cross examination, he could not defend even this conclusion.

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When the court issued its order, it did not reject Kamzol's testimony outright as a non-expert, as the defendants had requested. The court deemed him an expert. But the court did qualify that there was a problem of methodology:

The Court questions Mr. Kamzol's methodology because he had little to no information about or supervision over the origins of his data, the manner in which it had been matched, and what the rate of false positives would be. Additionally, there was little or no verification of his numbers. [Here the court cites Kamzol's deposition, which I cannot find online, which apparently concedes the lack of methodology, supervision, matching, false positive rate, or verification of numbers.]

Again, without explaining how you got to 42,000, it is difficult for a court to accept the figure of 42,000. And without even a single individual that they followed up with to determine its accuracy, it was, again, an absence of evidence:

109. Despite two of Contestants' experts testifying to 'questionable ballots' and 'illegal ballots,' Baselice Dep. 52:20-25 ('questionable ballots'); Kamzol Dep. 53:10-14 ('illegal ballots'), neither provided evidence to support Contestants' allegations regarding the presence of illegal votes in the 2020 presidential election. See Herron Dep. 59:22-60:12, 68:13--69:12 (testifying that neither Mr. Baselice nor Mr. Kamzol disclosed the data underlying their analysis); Baselice Dep. 24:7-15 (explaining that he did not participate in compiling the data he used and 'shouldn't even surmise' 'what the original source of the data was'); Kamzol Dep. 58:6-59: 15 (explaining that he did not know how the matching work to enhance the data he used was performed); Baselice Dep. 60:8-61:17 (acknowledging that he could not determine how many 'questionable' ballots were actually counted, contained votes in the presidential election, or were cast for a particular candidate); Kamzol Dep. 92:4-16 (same). Little or no verification of numbers was done by Mr. Kamzol.

So, circling back to Para. 109, in the deposition (read: the opportunity to cross-examine a witness), Kamzol could not determine how many double votes were cast. That would seem to run up against the 42,000 figure in the expert report.

(There was a supplemental declaration, but it was rejected as filed too late. You can see even within that, however, weak methodology:

Birth dates were not provided on the DMV file and name suffix (JR/SR/etc.) presence appeared to be inconsistent, so false positive matches of like-named family/household members are possible within these matches; however and again, these are all high to mid-high confidence matches that are reliable and merit further investigation.

I don’t think the supplemental declaration advances much in this regard.)

When it came to double voting, there was no evidence that "any Nevada voter voted twice." Here's the specific paragraphs from the court's opinion--and by "any voter," it means not a single one (at least, as put forth by the plaintiffs):

93. The record does not support a finding that any Nevada voter voted twice. See Doe 4 Dep. 10:6-13 (testifying that two voters he checked in were not allowed to vote because of record 16 that they already voted).

94. The record does not support a finding that any individuals were sent and cast [note: an important qualification] multiple mail ballots. Cf Negrete Deel. (LAW 001626) (hearsay declaration alleging that she received two ballots, one each for her married and maiden names, but not that she or anyone else cast multiple votes); Finley Deel. (LAW 004944) (hearsay declaration alleging that voter received two ballots, but providing no evidence that ballot was cast or counted).

*

A journalist at the Nevada Independent looked at a version of the double voting list, and it offers a different kind of explanation.

The Washoe voter file from Nov. 5 has 303,989 records; about 3,800 are duplicates. Some duplicates exist because of a change of address, as the following vote trace data shows (for a friend of ours who is building a new home).

They had changed their address at the DMV (which is linked to their voter file) to the one for the new home, but as the home was not completed in the run-up to the election, when ballots were mailed out to everyone, theirs could not be delivered to that address. The family showed up to early vote, and was asked to fix their address by the poll worker. You can see the challenge code “MAIL” in their record, meaning the mail-in ballot was undeliverable. You can also see an Early Vote Code for the ballot that was counted. You can also see the Voter ID duplicated as there are now two addresses associated with the voter. This type of duplicate record is considered a change of address.

Another type of duplicate record occurs because a person voted by mail, then voted again in person. Analysis shows that registered Democrats and Republicans have about the same rate of these duplicate vote entries.

In an effort to trace one of the duplicate votes, I interviewed a person whose mail-in ballot was collected from her home, but who was concerned that the person wouldn’t turn it in. She wanted to be sure her vote was counted, and appeared at a polling place in person, explaining the situation to the poll worker. In the file, I could see that the mail ballot did arrive — and that her in-person vote canceled out the vote by mail (as it should be).

That is, even at times where it was actually a duplicate in the database, a ballot was only cast and counted once within this system. That is, what might appear to be a duplicate vote is not actually a duplicate vote on close scrutiny, because there are checks in the system that prevent double-voting (even if a voter is mailed or receives multiple ballots).

*

It’s tough to get a concise look at a specific claim, given how many free-wheeling claims there are out there. But the origin of this story begins with an expert report that lacked methodology or underlying data; a report that was minimized and in some cases retracted on cross-examination; evidence deemed low value and low reliability by the court; and evidence lacking any specific backing upon scrutiny. Examination of the evidence offers explanations about some of the apparent irregularities or inconsistencies as misreading the database or misunderstanding the controls in place to ensure each voter casts a single ballot.

But when someone testifies before a committee of Congress about a hard figure like 42,000, that’s what gets picked up. Digging deep into even this claim takes hours of research to identify its origin and its weakness. One could do this with dozens of other claims floating out there. But I thought, given that I’d done the effort elsewhere, I’d share the origins of this one claim.

"Iowa's Second Congressional District Contest Should Be Dismissed for Lack of Exhaustion of State Remedies"

Over at the Election Law Blog, I have this guest post, “Iowa’s Second Congressional District Contest Should Be Dismissed for Lack of Exhaustion of State Remedies.” It begins:

Iowa’s Second Congressional District is officially one of the closest congressional elections in American history. Congresswoman-Elect Mariannette Miller-Meeks led by 47 votes after the official canvass. After challenger Rita Hart requested a recount in all 24 counties, Miller-Meeks led by just six votes. Miller-Meeks received a certificate of election from the state and will be seated, absent an extraordinary move from the House of Representatives, in the 117th Congress.

Hart has filed an election contest under the Federal Contested Elections Act of 1969. Under the Constitution, each House is “the judge of the elections, returns and qualifications of its own members.” In doing so, however, Hart skipped the opportunity to file an election contest in Iowa courts.

Hart’s lead-up to the election contest was a thaumatrope. On one side, the Hart campaign alleged that not all the votes were counted, and every vote needed to be counted. On the other side, the Hart campaign complained that the time to seek an election contest in state court was too short, so the House was the only mechanism for it. Spinning this thaumatrope, the two claims appeared as a single concern.

But now that the contest has been filed, we see two distinct claims. The first are discrete claims about twenty-two ballots that were not counted that the Hart campaign argues should have been counted, amply within the window of a state court contest to resolve. The second are sweeping claims asking for, effectively, a second recount (or a third count) of thousands of ballots, something a contest court would never have entertained because Hart would have been estopped from raising it.

I’ll provide an overall setup of the dispute, then dig into some of the specific claims Hart raises in the contest. I’ll refer to some of the points in the Notice of Contest, but I’ll also refer to relevant facts omitted from the Notice. But in short, Hart raises two types of claims, and both should be dismissed, in my judgment, on fairly straightforward procedural grounds: the first claim should be dismissed for lack of exhaustion; the second claim should be dismissed for estoppel, waiver, or laches.

"Texas v. Pennsylvania Would Have Upended the Electoral College"

Over at Law and Liberty, I have this post, “Texas v. Pennsylvania Would Have Upended the Electoral College.” It begins:

The Electoral College is a designedly decentralized process for the selection of the President of the United States. Each State may choose its presidential electors in the manner that the legislature deems appropriate.

The State of Texas, in Texas v. Pennsylvania, sought to upend this system in advance of one end: get the Supreme Court to do something, anything, to prevent President-Elect Joe Biden from taking office.