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Monday, December 09, 2019 {{ new Date().getDay() }}

Reprinted with permission from AlterNet.

Roy Moore cannot get a recount under state law, a growing chorus of legal scholars said Wednesday, despite what the state’s top election official and the Senate candidate himself might have you believe. (Moore told rallygoers Tuesday night that the race is “not over,” and that it will “take some time.”)

“It looks like Roy Moore cannot request a recount in the Alabama Senate race if the margin is greater than 0.5 percent (there’s an automatic recount for the 0.5 percent range),” wrote Rick Hasen, a University of California Irvine law professor and curator of the nation’s most influential election law blog. “Last night on CNN, Alabama SOS [Secretary of State] John Merrill got it wrong, saying that Moore could pay for a recount in the larger range. The statute does not allow this for federal offices.”

As of midnight Wednesday, Democrat Doug Jones had 671,151 votes to Moore’s 650,436 votes, a margin of victory of 1.5 percent. The election also included 22,819 write-in votes, which is what Sen. Richard Shelby (R-AL) suggested Sunday that his fellow Alabama Republicans submit.

Hasen’s comments—which were affirmed by other election lawyers on his listserv—highlight the latest dubious behavior by high-ranking Alabama officials surrounding the controversial U.S. Senate election.

On Monday, a Montgomery County court issued an order telling Merrill to instruct all county election officials to preserve the digital images of every ballot that is scanned and counted. That involves checking one box on a software window after turning on the scanners. Merrill appealed the ruling to the Supreme Court of Alabama, which reversed the lower court order and undermined any chance of creating a full public record for a possible recount.

The Supreme Court of Alabama quickly issued its order without hearing from attorneys representing the four Alabama citizens seeking to preserve the ballot images.

“It appears that the court issued its order within minutes after the stay request, without giving the other side a chance for briefing,” Hasen blogged. “How could they have had a chance to fairly consider the issue?…It is very disturbing because the AL Supreme Court’s order effectively decides the case. The ballot images will be destroyed, even if plaintiffs ultimately win on the merits weeks later. Goes against principles of preserving the status quo.”

If that wasn’t bad enough, later on Tuesday Merrill told CNN that Moore could pay for a recount, when as Hasen and other election lawyers have noted, the state’s election law does not allow a recount unless the victory margin is under 0.5 percent.

“I understand that Merrill may have made an error in the heat of the election (but truly, this is something he should have known going into such a high profile and closely watched election),” Hasen wrote. “But what explains his failure to correct things now? We are moving from a mistake to possibly something else.”

Merrill didn’t respond to Hasen, but blocked him on his Twitter account Wednesday.

The Washington Post’s Philip Bump took a closer look at the preliminary vote results, which have not been officially certified. Before Moore spoke on Tuesday night and refused to concede, his campaign chairman said there were still uncounted ballots from overseas military personnel.

“To [CNN’s Jake] Tapper, Merrill said it would be ‘highly unusual and highly unlikely for that number of ballots’— the 20,715 margin between Jones and Moore—‘to be outstanding’ from service members. It might, however, be enough to draw Moore within 0.5 points, he said,” Bump wrote, before debunking Merrill’s assertion.

“We can be confident, though, that it wouldn’t,” Bump continued. “As of May 2016, there were only about 8,700 people from Alabama serving in the armed forces. Assuming that’s held fairly steady, even 100 percent turnout from that group would account for only about 42 percent of the gap that Moore needs. Even if all of those servicemembers voted and all of them voted for Moore, Jones would still have a lead of 0.9 percentage points. Not enough.”

Alabama counties also have to verify and count so-called provisional ballots, which are given to people who are not on polling place voter lists. However, as the University of Florida’s Michael McDonald, a nationally known turnout expert, tweeted Wednesday, those ballots are likely to break for Jones, not Moore.

While the election is not officially over until Merrill certifies the results and Jones is sworn in—which under the electoral calendar, must happen by January 3—it’s very unlikely that the most partisan Alabama Republicans can stop Jones from taking office. While some Senate Democrats have already demanded he be sworn in immediately, the most likely timetable is after the GOP-led Congress rams through its only major legislative action this year, a regressive and widely reviled tax bill.

On the other hand, Bump said no one should hold their breath for Moore to concede.

“In situations like this, when a candidate is favored to win after months of campaigning but comes up short, it’s hard to tell if a refusal to concede is motivated by sincere concern over the result or simply a dogged refusal to accept reality,” he wrote. “In 2014, Chris McDaniel narrowly lost a Senate election to Sen. Thad Cochran (R-Miss.) and, according to the Clarion-Ledger’s Sam Hall, simply never conceded. Perhaps that’s Moore’s eventual fate: Always being the guy who almost won but never admitted it.”

“The evidence at hand makes one thing seem pretty clear, though: He’s not likely to suddenly become the guy who actually did win.”


Steven Rosenfeld covers national political issues for AlterNet, including America’s democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).


If Boss Trump is headed for defeat, he's getting his revenge early. His revenge upon his deluded supporters and the people they love, that is. Trump's re-election campaign now consists mainly of what epidemiologists call "super-spreader" events: large-scale rallies of unmasked, non-socially distanced Trumpists yelling in each other's faces while the Big Man emits a non-stop barrage of falsehoods, exaggerations, and barefaced lies.

Let me put it this way: If, say, the Rolling Stones decided to put on free concerts at airports around the country, they'd likely end up being taken into custody and deported as undesirable aliens. Of course, they'd also draw far bigger crowds than Trump, but that's not the point. The point is that Trump's actions are reckless and immoral; the peacetime equivalent of war crimes.

"Covid, covid, covid, covid, covid," he hollers. Trump claims that the United States is "turning the corner" on the pandemic, and that the accursed news media will quit reporting Covid-19 fatalities come November 4. He claims that health officials are motivated by greed because "doctors get more money and hospitals get more money" if they report that the virus was the cause of death.

Surveys have shown that more than a thousand physicians and nurses have died fighting the disease nationwide.

As ever, what he accuses others of doing is an excellent guide to the question: What would Trump do? Answer: he'd steal the silver dollars off a Covid victim's eyes and demand an investigation of Joe Biden

According to the Washington Post, the Trump campaign organization signed an agreement with officials in Duluth, Minnesota to limit attendance at a September 30 fly-in rally, in accordance with public health guidelines. Hours before the event, it became clear that no effort was being made to honor the agreement; some 2500 Trump supporters bunched up without masks on the tarmac, ten times the agreed limit.

Health Department officials' protests were simply ignored. Three days later, Trump himself was taken to Walter Reed Hospital by helicopter. Three weeks after that, the following headline appeared in the Duluth News-Tribune: "St. Louis County sees another record-breaking week of COVID-19 cases."

Any questions?

The Trump Circus subsequently performed in Janesville and Waukesha, Wisconsin in the midst of a record-setting pandemic outbreak there. "It took us 7 and a half months to reach our first 100,000 cases, & only 36 days to reach our second," the Wisconsin Department of Health tweeted. "In just two short months, the 7-day average of new confirmed cases has risen 405%."

But the show must go on. Trump regaled his Janesville audience with a veritable torrent of lies. The New York Times did a thorough fact-check of his October 17 speech. Reporters documented 130 false statements during Trump's 87 minutes onstage. Nearly three-quarters of his factual claims were untrue. The most egregious concerned Covid-19, probably because the disease represents his single greatest failure and most damaging political liability.

Another question: Does Trump count upon his supporters' invincible ignorance or simply share it? I fear it's a little of both. In Janesville, Trump made this absurd claim two minutes into his harangue: "When you look at our numbers compared to what's going on in Europe and other places," he said "we're doing well."

Any regular newspaper reader knows that this is simply nonsense. As the Times reports, "America has more cases and deaths per capita than any major country in Europe but Spain and Belgium. The United States has just 4 percent of the world's population but accounts for almost a quarter of the global deaths from Covid-19."

Germany, to choose the most striking comparison, has suffered only 122 deaths per million of its population, according to Johns Hopkins University. The United States has recorded more than five times as many: 686 per million. Neighboring Canada, meanwhile, is at 264 per million. Several Asian countries, have handled the pandemic even better.

It's a matter of capable leadership and public cooperation.

No wonder Trump appears to have succumbed to a case of dictator envy. "COVID, COVID, COVID is being used by [the 'Fake News' media] in total coordination" he tweeted the other day "in order to change our great early election numbers. Should be an election law violation!"

Yeah, well they all report the same World Series scores too. Furthermore, if Trump had good election numbers, he wouldn't whine so much. Has there ever been a bigger crybaby in the White House?

(In related news, Vladimir Putin has issued a mandatory mask mandate after a surge in Russian Covid infections. Go figure.)

Meanwhile, the rallies go on; a bizarre spectacle people treat as if it's normal. Trump has become Covid-19's Typhoid Mary, an Irish cook who unwittingly infected 53 people back in 1906.

But unlike Mary, he should know better. If anybody should be locked up, as his rapt admirers chant, it's the Super-Spreader in Chief.