Notes on Trump 58 – SCOTUS goes slow

I added this comment to Notes 57:

SCOTUS has just dismissed Texas for lack of standing to dispute elections in other States.

That was the weakest point. Texas claimed it had an interest because of dilution of Texas votes in Senate where Vice President chosen unlawfully has casting vote.

I thought SCOTUS would take the case because otherwise they are stuck with multiple separate cases wading their way through the lower State and Federal courts.

But combined with dismissal of [emergency injunction in] Kelly v Pennsylvania this does indicate any eventual judgments will be well after Biden takes office, contrary to my expectation.

Unusually, it seems the “experts” were right. Not unusually, I was wrong.

Click to access 121120zr_p860.pdf

No idea what happens next, as I wasn’t expecting this.

Thinking about it, my assumptions now are as follows.

Certainly nothing dramatic happens before December 14 so Biden and Harris become President and Vice President elect.

I just read the Texas reply filings and it seems they were serious about wanting the State Legislatures to be able to appoint replacement electors and actually have Trump declared winner on December.

That was never going to happen and I took it as purely an ambit claim with the intention of throwing it to the House instead by just restraining the votes so that total required would remain 270 and Biden/Harris would have less than that. But perhaps State Legislatures really was the plan, which was doomed.

They also seriously tried to defend a statistical analysis rather mildly described as “nonsense” by defendants.

It was actually “completely idiotic” rather than merely “nonsense”, as clearly explained here:

More on Statistical Stupidity at SCOTUS

I also now think it is also highly unlikely that anything much will happen by January 6 or by inauguration day on January 20.

Another factor is that there were still only 126 (of 196) Republican Representatives signed on as friends of the court in a second attempt a day after the first 100. That suggests a serious likelihood that throwing it to the House would still result in Biden winning in the House (with Vice President Pence winning in the Senate). Representatives in “purple” swing States are often “moderates” to avoid alienating other voters. There could easily be enough Republicans in enough State delegations who could either vote against Trump or simply abstain so that their State delegation votes for the candidate that had the larger popular vote. Only 1 or 2 State delegations would need to swing or abstain.

The issues will end up going to trial at some point but it seems unlikely that SCOTUS intends to expedite anything at all. One case that blocked Federal trials on the substance for Pennsylvania was already listed has a response due December 28 to proceed normally:

Any eventual declarations that the elections were conducted unlawfully in enough States could still result in removal of Biden and Harris from office. Equally it could just not.

It isn’t over but I was expecting lots of drama this week and I am not expecting that now.

How things develop with lots of people believing the election was rigged and a woeful Biden Presidency remains to be seen.

I still expect a mass based right wing party led by Trump with both a parliamentary and extra parliamentary wing.

Even if a majority of GOP representatives reject Trump, most won’t be likely to survive the primaries in 2 years.

Notes on Trump 57 – Safe Harbour

Today is December 8 in Washington. Celebrated by lots of media reports as marking the end of the wave of law suits challenging the 2020 Presidential election results. Experts say (again) that it’s all over now because the certified results are now final and conclusive.

In other news today:

Texas Attorney General Ken Paxton said he’s suing Georgia, Michigan, Pennsylvania and Wisconsin directly in the U.S. Supreme Court, accusing the battleground states of exploiting the coronavirus pandemic to illegally enact last-minute changes to mail-in voting rules.

Paxton, an outspoken supporter of President Donald Trump, claims the states “flooded their people with unlawful ballot applications and ballots” and ignored rules for how mail-in ballots were to be counted, according to a press release announcing the litigation. The allegations echo those made by Trump and his allies in dozens of lawsuits filed in the same swing states following President-elect Joe Biden’s election victory.
“These flaws cumulatively preclude knowing who legitimately won the 2020 election and threaten to cloud all future elections,” Texas said in a motion seeking high court approval to file the suit. “Taken together, these flaws affect an outcome determinative numbers of popular votes in a group of States that cast outcome-determinative numbers of electoral votes.”The suit comes on the “safe harbor” deadline for states to certify their slates of electors but before the Electoral College meets on Dec. 14. Paxton, who is seeking an order that would block electors from the four states from participating, requested an expedited briefing schedule requiring the defendant states to file briefs on Wednesday and oral arguments to be heard on Friday. If the court fails to act before the electors vote, “a grave cloud will hang over not only the presidency but also the republic,” he said.

Here is the Texas press release with link to the actual filing:

That 154 page filing is not yet listed on the docket of the Supreme Court of the United States (SCOTUS).

Meanwhile in further news today, here is the response, just filed at SCOTUS, to petition disputing election in Pennsylvania election:

Click to access 20201208090425848_20A98%20Response%20in%20Opposition%20efile.pdf

Opens with:

Petitioners ask this Court to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic. No court has ever issued an order nullifying a governor’s certification of presidential election results. And for good reason: “Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. . . . The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.” Order, Wis. Voters All. v. Wis. Elections Comm’n, No. 2020AP1930-OA, at 3 (Wis. Dec. 4, 2020) (Hagedorn, J., concurring).”

That is EXACTLY the ludicrous media bleating I quoted from the 4-3 judgment in Wisconsin in Notes 56:

But this time the menacing undertone is made explicit:

They make that request without any acknowledgment of the staggering upheaval, turmoil, and acrimony it would unleash. In issuing equitable relief, this Court rightly seeks to avoid inflaming social disorder. So to say that the public interest militates against Petitioners would be a grave understatement. Their suit is nothing less than an affront to constitutional democracy. It should meet a swift and decisive end.

…[many pages of obscurantist lawyerisms with no suitable media quotes]…

Finally, granting an injunction would sow chaos and confusion across the Nation while inflaming baseless concerns about electoral impropriety and ensnaring the Judiciary in partisan strife. This case reaches the Court against the backdrop of
unfounded claims—which have been repeatedly rejected by state and federal courts— that wrongly impugn the integrity of the democratic process and aim to cast doubt on the legitimacy of its outcome. Given that context, the Court should not plunge itself into a firestorm by issuing the first ever judicial order decertifying the results of a presidential election.

This banana republic intimidation is clearly designed as fuel for the media campaign rather than at convincing SCOTUS. There is nothing in the 52 pages that a media report could even attempt to convey other than the intimidation.

SCOTUS docket 20A98 Kelly v Pennsylvania is available here:

On December 6 the due date for a response to the application (20A98) was brought forward by Justice Alito to Tuesday, December 8, by 9 a.m.

Originally due following day. Brought forward to “safe harbour” date so theoretically an order could be issued the same day

Coincidentally my Notes 56 about the implications of “safe harbour” day – “Serendipity and SCOTUS”, was also on December 6 at around 2230 AEST. Well before change of date Washington time. It explained why I expect an order issued after “safe harbour” to have more impact.

Here are four articles from others speculating about the original date, its relation to the “safe harbour” date and the switched date:

If the date was brought forward in the hope that the respondents might raise some issue regarding “safe harbour” so that SCOTUS could justify a pronouncement about it, the respondents did not do so.

Here is the media’s talking points on the date having been moved forward.

“Experts” all agree that “safe harbour” deadline today sets the results in stone. Actually it only prevents Congress, not SCOTUS from overturning State returns. The experts are also convinced that SCOTUS won’t intervene at all, before or after today. There’s no sign of them even thinking about the issues I raised as to WHY the Republicans might prefer delays until after today and why they have not even filed cases for Wisconsin and Michigan at SCOTUS so far.

It doesn’t make sense for these experts to be saying what they are saying if they don’t actually believe their own delusions. If they were rational they would be at least preparing public opinion for the “possibility” that SCOTUS might “outrageously” intervene. But they are so wrapped up in their Trump Derangement Syndrome that they really are quite confident that a Supreme Court with 6 conservative and 3 liberal justices is about to do what they want.

I’m no “expert” so I’m not as certain as they are. But I would be surprised if these experts were not wrong – as usual.

While staying up waiting for this response I had another look at the links provided in Notes 49 concerning whether Pelosi could end up as President:

As far as I can see the majority of the House withdrawing from the joint sitting on January 6 would still leave Pence presiding over a joint sitting together with Republican House members. Kicking Pence and the Senators out of the House chamber would not change the constitutional provision that the Electoral College vote count would be completed at that sitting and the result announced by Pence.

Then if no candidate had 270 votes the Senate would presumably elect Pence as Vice-President. Perhaps not, if some Republicans prefer Harris but that seems unlikely. Then the Vice-President elect would become President if the House had not picked a President when the current term expires on January 20.

Nevertheless the Democrats could claim that Pelosi had become President by insisting that:

  1. The majority of the House refusing to participate in the joint session they are required to participate in by law prevented it completing the count and therefore there is no basis for either the House to choose the President or the Senate to choose the Vice President, so both positions became vacant on January 20 and the Speaker of the House became acting President (until the deadlock is resolved).
  2. The Democrat Senators refusing to attend the Senate session they are required to attend by law prevented a two-thirds quorum and so prevented the Senate choosing the Vice-President by an absolute majority of votes.

SCOTUS could decide not to rule on such a political dispute.

But with both Pence and Pelosi purporting to take oaths of office as President by January 20 SCOTUS would end up having to decide.

The quicker the fat lady at SCOTUS sings the fewer people would get killed while shouting at each other.

At present more people are dying from covid-19 EVERY DAY than were killed on 911. So life has become cheap in the USA and SCOTUS could just let things drag on. I doubt it.

Since there is in fact no mood for civil war both sides would end up accepting the SCOTUS decision, as would the armed forces, including the Praetorian Guard.

Whatever SCOTUS decided would still be untenable as either House could deny funds to the Executive in a situation where they don’t accept the outcome.

Eventually I still think they would need to agree, together with the States, on a constitutional amendment for fresh elections.

Whatever they do, Trump will still be leading a large mass based right wing populist party.

Notes on Trump 56 – Serendipity and SCOTUS

What can the Supreme Court of the United States do to minimize bloodshed about a disputed election when half the population already regards each other as enemies?

Contrary to media fantasies it cannot just join the chant of “nothing to see here”. But it isn’t easy to see what could avoid inflaming the situation.

My guess is that full bench of SCOTUS will grant a stay or an injunction preventing completion of at least the Pennsylvania election.

This would be seen as vindicating Trump. So more of the justices would have to write detailed opinions than for a usual stay. That could result in some delay but is unlikely to change the impact.

Emergency appeals: Stay requests

Meanwhile I expect the Court will have quite a bit of other work to do before the December 14 Electoral College vote so the stay/injunction could effectively settle the issue for PA by preventing any PA votes in the Electoral College pending a final decision.

That might not stop Democrat Electors certified by Democrat Governors from forwarding their votes to be counted by the Electoral College before a session of both Houses on January 6. But it would stop Vice President Pence in charge of the session from counting them.

It would also stop the PA legislature from choosing Republican replacements. As the lower court that made the original order to delay completion agreed, the Republican plaintiffs request for that “relief” would be an “untenable” result of the (Republican) legislature having ignored the PA Constitutional provisions explicitly restricting absentee voting when it legislated unlimited postal voting. Such an outcome would also be “untenable” for other battleground States for more political reasons.

SCOTUS simply cancelling enough postal votes to reverse the outcome in any State would be even more untenable. Due process obviously precludes doing that since the postal votes were cast in reliance on the laws enforced at the time of the election.

The Purcell principle: A presumption against last-minute changes to election procedures

As the lower court noted, there are other options available to a court of equity. Delay to avoid an “untenable” outcome is an obvious example of a wise court impartially doing equity.

Due process and election administration

The least untenable options to either accept or nullify the election in each of the States where it was not conducted lawfully are to decide that the issue has become moot (as the State courts have tried to do to accept the results, and as SCOTUS could more successfully do to nullify them since it gets the last say as to what is or is not yet moot).

Avoiding an untenable result might be done most smoothly by preventing completion to enable weighty deliberations that will be concluded sometime after December 14 (perhaps including the initiation of some “forensic audits” as demanded by Trump).

Meanwhile, delaying PA completion until after December 14 would be a neat response to the Supreme Court of PA having refused to hear the case on the due process grounds that the Republican plaintiffs had delayed complaining about the unconstitutional legislation for a year until after losing an election (having previously ruled that they would have no standing to complain before the election!).

That would leave SCOTUS free to rule either way after considering the implications of other cases.

We are now almost at the “safe habour” deadline after which Congress is required to accept the credentials of any Elector votes certified by the Executive (Governor) of each State, unless both Houses separately object.

Serendipitously, after that deadline, December 8, it becomes unambiguously clear that ALL the 538 certified Electors have been “appointed” so the total number of votes required on December 15 to elect a President and Vice-President at the joint sitting on January 6 is 270.

If some of the certifications had been nullified before “safe harbour” it could be argued that Biden still had a majority of the votes of the appointed Electors.

If however sometime between “safe harbour” and the Electors meeting on December 15 (separately in each State) it becomes necessary for SCOTUS to decide whether a lawful election was in fact held in one or more States then it would also be necessary to issue emergency orders to preserve the status quo by ensuring that no purported votes from such purported Electors could be cast, transmitted or received until a decision about their status.

Serendipitously, that would also avoid the possibility of any State Legislature appointing Electors itself since it had chosen the method of election by the people and that had not yet been nullified by any Court holding that a lawful election had not been held and the appointments were therefore nullified. So there are no vacancies to be filled by the State Legislatures.

I think that could be the way a SCOTUS dominated by conservative strict textualists could deal with the problem that the plain text of the Constitution and legislation would otherwise clearly produce the “untenable” situation of SCOTUS appearing to do Trump’s bidding by allowing Republican legislatures to pick the Electors that were rejected by a majority of voters in their States.

I am not a lawyer, let alone an expert on US electoral and constitutional law, entwined with the history, politics and judicial personalities of the United States. But that’s my best guess. There are of course a vast array of other options available.

Only two more battleground States (other than Nevada) need to be prevented from voting on December 14 to throw the election to the House of Representatives voting by State delegations.

Starting with PA might be considered sufficient to discourage future rigging. But it could also just be a first step that gets people used to the idea that the media does not decide whether an election was conducted lawfully.

I cannot predict how far SCOTUS will go but Wisconsin and Michigan strike me as the most likely to accompany PA if SCOTUS needs to deprive Biden of a majority in the Electoral College with minimal bloodshed. Nevada only has 6 votes so there would still need to be two other States as well as PA. Arizona and Georgia had Republican administrations counting the votes. It is a lot more plausible that elections were rigged against Trump in Democrat run cities like Detroit MI and Milwaukee WI (as well as Philadelphia PA).

Here for example is what a 4-3 majority of the Supreme Court of Wisconsin just came up with:

“Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”

Click to access 2020AP1930-OAfinal-12-4-20.pdf

Not only is there “nothing to see here” but it is “dangerous” that a candidate for President has disputed whether an election was conducted lawfully by petitioning a Court. That is pretty much EXACTLY what the media has been bleating continuously.

If SCOTUS did accept that Banana Republic judicial logic, the “loss of public trust” in the “constitutional order” would be a lot more “incalculable” than the rather mild dissent from the Chief Justice and two others of that court:

“It is critical that voting in Wisconsin elections not only be fair, but that the public also perceives voting as having been fairly conducted.

This is the third time that a case filed in this court raised allegations about purely legal questions that concern Wisconsin Elections Commission (WEC) conduct during the November 3, 2020, presidential election.4 This is the third time that a majority of this court has turned its back on pleas from the public to address a matter of statewide concern that requires a declaration of what the statutes require for absentee voting. I dissent and write separately because I have concluded that the court has not met its institutional responsibilities by repeatedly refusing to address legal issues presented in all three cases.”

Although mild, that “I dissent” was not the more customary “I respectfully dissent”.

If that refusal of institutional responsiility gets past the US Court of Appeal for the Seventh Circuit I would expect Barrett J, supervising that circuit for SCOTUS to issue an emergency order with an equanimity bordering on enthusiasm.

There is a slightly menacing undertone in the Supreme Court of Wisconsin majority adoption of Democrat warnings about a “dangerous path”. If Democrats were not so wimpish about the right to bear arms it might be hinting at “incalculable” civil unrest.

More plausibly “loss of public trust” in the “constitutional order” could result in the House of Representatives majority claiming to act on behalf of the majority of voters defending against a judicial blow against an election that everyone has been repeatedly told was entirely free and fair by every TV network.

Lots of interesting things could then happen in early January since the House of Representatives majority has powers over the credentials of its own members and could prevent any President or Vice-President being elected before the current term expires on January 20.

Serendipitously that could end up with President Pelosi since as Speaker of the House she is next in the line of succession of officers of the United States legislated in accordance with the Constitution (followed by Secretary of State Pompeo) as mentioned in Notes 48. SCOTUS could avoid any suspicion of being motivated by animus against the Democrats when they reject the inevitable Republican claims that Pompeo should be next in line because the Secretary of State is an officer of the United States Executive whereas the Speaker of the House is only an officer of the House.

With no mandate, no funds from the Senate, and no confirmed cabinet officers, President Pelosi would have to agree with both parties and the States on the necessity for constitutional changes to enable fresh elections as soon as possible after ending martial law to deal with the overwhelming of US hospitals by covid-19. I may return to that sheer fantasy speculation later.

I’ll also leave Michigan and the actual facts about excluding observers while rigging votes till later.

Notes on Trump 55 – Nearly half US voters see each other as America’s biggest enemy

National Survey of 1,000 U.S. Likely Voters

Conducted November 29-30, 2020
By Rasmussen Reports

[Question] “Who is America’s biggest enemy as 2020 draws to a close – Russia, China, Iran, North Korea, Trump voters or Biden voters?”

NOTE: Margin of Sampling Error, +/- 3 percentage points with a 95% level of confidence

Voters See Each Other as America’s Enemy

Tuesday, December 01, 2020

U.S. voters now regard each other as a bigger enemy than Russia or North Korea and just as dangerous as China.

The latest Rasmussen Reports national telephone and online survey finds that 24% of Likely U.S. Voters think Biden voters are America’s biggest enemy as 2020 draws to a close. The same number (24%) see China as enemy number one.

Nearly as many (22%) regard Trump voters as the biggest enemy, while 10% view Russia and seven percent (7%) North Korea as the largest threat to the United States. Eleven percent (11%) are more wary of something else. …

A deeper dive finds that 37% of Republicans feel Biden voters are the biggest enemy, just edging the 34% who feel that way about China. Thirty-five percent (35%) of Democrats think Trump voters are the biggest threat, far and above the danger posed by all the others.

Voters not affiliated with either major party rate China, Biden voters and Trump voters all equal as threats.


  1. Wisconsin Supreme Court refused to hear election dispute by 4-3. Referred to lower court.
  2. Georgia recount confirmed Biden by similar tiny margin.
  3. Kelly v Pennsylvania explained in Notes 54 and comment is still not on SCOTUS docket. Presumably today’s conference of Full Court will decide how to handle it. Pennsyvania Supreme Court won’t and has issued order refusing stay of its lifting of injunction imposed by lower court preventing completion of Pennsylvania election to decide what to do about likely unconstitutionality of postal voting.

Pennsylvania VBM Certification Challenge

  1. Trump made important 45′ video on election rigging – mainly re postal voting. Speech and media reaction likely to significantly increase hostilities. No mention of Kelly v Pennsylvania. But if, as I expect, SCOTUS does prevent completion of Pennsylvania election pending hearing it will be widely seen as support for Trump’s claims of rigged election, assisted by media reaction to it.

So far 628K views, 128K comments, 296K shares

Some (partisan) background on overall conflict over postal voting:

  1. Michigan legislature oversight committee is holding video hearings of “non-existant” evidence from Giuliani’s witnesses to fraud. Some flaky, some convincing. 5 hours of video.

It looks to me highly likely that the numbers of voters who consider each other to be the biggest enemy of their country will continue to increase.

Conditions still ideal for populist demagogue building right wing mass based party.

Worth taking the time to understand what is happening.

Notes on Trump 54 – Heating Up

As expected things are starting to heat up.

  1. Pennsylvania constitution restricted absentee votes to limited categories. Legislation established unlimited postal votes.
    Lower Court ordered emergency delay to consider. Higher State Court allowed certification to proceed. SCOTUS now asked to nullify. Not on SCOTUS docket yet but here’s documentation so far:

Pennsylvania VBM Certification Challenge

Click to access Kelly-v.-Commonwealth-Final_Emergency-Application-for-Writ-of-Injunction.pdf

If Justice Alito issues the emergency injunction the Full Court would need to deal with the issue immediately to decide whether Pennsylvania electors participate in the Electoral College vote.

Lots of sound and fury for the next week at least.

Current situation is fairly clear. Election result was determined by votes not permitted by State Constitution.

Pennsylvania appeal court says that even if so, it was raised too late to justify nullifying the election.

This will presumably be considered together with allegations that credentialled observers were prevented from actually checking whether postal votes were being counted fraudulently.

I would be surprised if there are Pennsylvania electors participating in the Electoral College vote.

I would be astonished if there is not a lot of simultaneous screaming that this is an outrage and of reassurance that it won’t affect the final result.

In other news:

  1. US Attorney General has announced that well before the election a special investigator with similar powers to Mueller has been appointed to investigate the whole Russiagate exploding heads phenomenon with notification of this delayed until after the election. I expect more outrage, with more liberal exploding heads, further consolidating a mass right wing party in the USA.
  2. Georgia election official has warned of serious death threats and danger that somebody could get killed.

I think that is very real. I haven’t seen any plausible indications the Georgia result could be overturned and certainly no risk of civil war. But things are already hot enough to expect some deaths on both sides.

  1. Vaccine approvals being rushed through very shortly after December 8 deadline for election disputes. Cold storage shipment facilities already being organised by airlines and military for 20 million or so by the end of the month and year. I would be surprised if Trump fails to do a grand tour inserting his branding into the event.

covid-19 Quarter Baked Half Time

This is not just a half baked, but rather a quarter baked article on the current situation with covid-19.

My guess is that Australia is about half way through the state of emergency that began in mid-March.

Current indications are that a vaccine will start to be available here from about March or April, with full availability and likely herd immunity by the end of next year.

Victoria is now perhaps the safest State in Australia. Despite relaxing restrictions more rapidly than planned Victoria has been far more successful at eliminating “mystery cases” than I expected.

The prompt response to a recent outbreak in South Australia suggests that lessons have been learned and the long delay that resulted in a second wave in Victoria won’t be repeated anywhere. So there is a pretty good chance of only occasional sporadic outbreaks, especially after priority vaccinations reduce the risk of escape or leakage from quarantine or from hospitals.

Public Health authorities are correctly warning that it isn’t over. That is especially important for people more vulnerable.

But it looks like the risks of becoming severely ill as a result of happening to get infected before a sporadic outbreak is detected are now similar to those for any other accident that can be mitigated by taking sensible precautions.

That should mean Australia goes to the back of the queue for vaccination. There is currently no urgent need here and major disasters elsewhere, so it should take much longer than the end of next year to vaccinate Australia.

But its far more likely the poorer countries that are likely to eventually get hit very hard will come last and Australia will be in the middle. I would be surprised if the production plants in Europe and North America divert supplies from the disaster unfolding around them until they have that under control. So the initial vaccinations here could also be later than March and April.

Anyway there is plenty of time before next March to analyse the recent news re vaccines.

A lot more information will be available in a few weeks so I am not attempting to analyse this further now. The disasters in Europe and North America are still unfolding and far worse is to come in the rest of the world, but it will be a lot easier to analyse in a few weeks than it is right now.

I am just dashing this off quarter baked because I expect to be paying more attention to US politics over the next few weeks.

There’s only a week or so until an important deadline in the US electoral process and I expect things to heat up a lot before then. The December 8 deadline could be the end of it or could result in things remaining very hot right through to early next year.

It is impossible to follow the numerous court cases, some of which I expect to end up in the Supreme Court very shortly:

Some aspects were covered here:

I expect to be looking at other aspects before returning to the pandemic.

Notes on Trump 53 – Ascertaining the apparent President elect

Things seems to have quietened down a bit since the US General Services Administration performed its task of ascertaining the apparent President elect and released funds for the Biden transition team.

I think things will heat up again over the next couple of weeks to the deadline of December 8 for resolving who are the electors from each State that form an electoral college to choose a President and Vice-President on December 14.

Oddly this very recent judgment of 25 November from the Supreme Court of the United States (SCOTUS) could be relevant:

Roman Catholic Diocese of Brooklyn v. Cuomo (20A87)

It is an interim order cancelling health regulations that were held to restrict religious establishments more than necessary.

As the Chief Justice (dissenting) pointed out, there was no need for an injunction since the restrictions were not currently in force and the issues would be tried by the lower courts in mid-December.

But the injunction was issued anyway, just after the apparent President elect was ascertained, and just before the disputed elections are about to reach SCOTUS. I think there is a connection, explained below.

The word “apparent” has two meanings:

  1. clearly visible or understood; obvious.
  2. seeming real or true, but not necessarily so.

Things have quietened down because many people agree in the first sense.

I think things will heat up very soon because the actual reality is the second sense.

As explained in Notes 48 (and 49), Trump’s strategy is to keep disputing postal votes until the December 8 deadline so that Biden has less than 270 electoral college votes. With some help from Republican State legislatures and governors as well as Vice-President Pence presiding in the joint session counting the votes, this could end up throwing the election to the House of Representatives voting by State delegations. If Republicans still have a majority of representatives in 26 States then Trump wins.

See also the links in comments to Notes 48 and also the complex legal details:

But unless Biden gets a big enough landslide for the result to be clear without postal votes on November 3, it looks like there will be a protracted battle.

It seems unlikely that the fight would be just among lawyers.

I wrote on October 12, before the US election day:

If there is a big enough landslide on the election night so that subsequent postal votes would not affect the outcome, then legal battles in swing states will be pointless.

Likewise if Democrats win a majority of seats from a majority of States in the House (including smaller Republican States that they don’t usually win).

Likewise if Democrats win a majority in the Senate.

All three are possible.

But if none occur there will certainly be drama from election eve to December 8.

That lays the basis for Trump to retain leadership of a large right wing party loudly convinced that the election was stolen by the corrupt liberal elite.

Even if the drama ends with the Electoral College votes on December 8. That will still result in consolidation of a far right mass based party in the USA.

Worse if it doesn’t end there but only in Congress or the Supreme Court.

I don’t see any likelihood of Trumpists being able to retain office in the face of what is clearly a majority of both the people and the establishment hostile to them.

But the “stab in the back” legend has a powerful appeal on the right and we will still be stuck with a weak inept ruling class and no left wing opposition.

As it turns out none of those 3 possibilities of avoiding the current situation occurred. The Biden landslide that would settle it on or near election night did not occur. The Democrats did not win the Senate and they actually lost seats in the House as well as losing one more State governor.

Democrats were resigned to defeat until the covid-19 pandemic. With Trump presiding over a quarter of a million unnecessary deaths he should have gone down in flames. But they managed to stuff it up.

So I do still expect drama until at least December 8 and I still expect consolidation of a mass right wing party in the USA.

My guess is the likelihood of Trump retaining office has been significantly diminished by the fact that Democrats voted early in large enough numbers to avoid it looking as though Trump actually won on election night. But it certainly did not look like Trump lost until a lot later when postal votes were counted. So lots of Trump supporters will believe the well prepared and slick campaign insisting that he won. Not as many as if it looked like he won on the night, but still a lot. Certainly enough to continue to dominate Republican primaries and consolidate a mass right wing party.

This video from the future “Trump TV network”, ONN competing with Fox news gives insight into the way things look to them:

One America News – Chanel Rion on “Dominion-izing the vote”

If you don’t watch it, don’t pretend to yourself that you understand what is going on.

Lots more at:

On the other hand the likelihood of Trump retaining office may have been significantly increased by the sheer extremism of the mass media’s response to their fear about the success of that campaign.

Instead of attempting to actually counter the campaign, they have, as usual, come out like spokespeople for a banana republic dictatorship denouncing an opposition candidate for having dared to dispute the integrity of a rigged election.

Nothing could be less reassuring than the unanimous bleating that there is “nothing to see here” and repetition that any allegations are “baseless” with “no evidence” etc. It is just a reminder that the same people spent the last four years insisting that the President of the United States was a Kremlin stooge who should be removed because the election was manipulated by the Russians.

Here’s the results of Rasmussen polls on the effectiveness of the bleating:

Sixty-one percent (61%) of Republicans say it’s Very Likely the Democrats stole the election, but just as many Democrats (61%) say it’s Not At All Likely. Among unaffiliateds, 29% feel it’s a stolen election; 45% do not.

Just two weeks before this year’s Election Day, 94% said their vote would be correctly recorded and counted, with 73% who said it was Very Likely. Following the election, those findings fell to 71%and 47% respectively.

ONN does not have the reach of the anti-Trump media (now also including Fox news). Credit for convincing a majority of voters that the election was rigged must go to the anti-Trump media.

I don’t think the conspiracy theories about voting machines are likely to be the focus of either the imminent legal battles at SCOTUS or what actually convinces many people about whether the election was rigged. Conspiracy theories are more a distraction to assist the media to continue not thinking while their heads just keep on exploding.

Some of the court documents with the actual “baseless” allegations and the “non-existant” evidence can be found at links buried in the news releases at above web site.

Lots of it is pretty weak.

But there is evidence that observers were prevented from observing. If that occurred enough to have enabled rigging sufficient votes to affect the outcome in any State, the results from that State should be cancelled. It isn’t necessary to prove whether or how many votes were affected. It is sufficient to establish that observers were excluded. Excluding obserers is pretty much the definition of a fake election.

It should be a very simple matter of evidence. Detailed audit trails are maintained to account for who had custody of each ballot paper and who observed at each stage of the process of counting them. How on earth would anybody be persuaded to take the results seriously if that were not enforced?

If the observers were not allowed to observe then the election was not held according to law and has to be cancelled.

It isn’t the integrity of polling officials and people vouching for them that ensures a fair count. The ONLY thing that ever can is the fact that they are being watched.

But the judgments attempting to avoid a trial and evidence on this simple issue are dynamite.

Here’s the best bit from p34 of a 37 page Pennsylvania judgment:

Click to access rudy-can-fail.pdf

“None of these allegations (or the others in this section) claim that the Trump
Campaign’s watchers were treated differently than the Biden campaign’s watchers.
Simply alleging that poll watchers did not have access or were denied access to
some areas does not plausibly plead unequal treatment. Without actually alleging
that one group was treated differently than another, Plaintiffs’ first argument falls

I can think of 3 justices of the Supreme Court of the United States (SCOTUS) who might be persuaded that the casual workers and election officials in Democratic run cities like Philadelphia and Detroit could be trusted to count votes accurately when there are no observers watching them. But they would be able to argue a lot more convincingly than by triumphantly pointing out that both Republican and Democrat observers were equally excluded from watching the Democrats count the votes!

My guess is the substance of a less spectacularly stupid argument would be that Republican observers were not excluded. They insisted on trying to approach poll workers closer than 6 feet of and were not permitted to do so because of health regulations. But they could have still done their job from 6 feet away, just as the Democrat observers who complied did.

But I can think of 5 justices who are unlikely to find that convincing. They could argue that there have been many months in which arrangements could have been made for Personal Protective Equipment routinely used by health workers during the covid-19 pandemic and close up TV cameras could also be provided etc. So BOTH health requirements AND the requirements for monitored counting of votes in a valid election could be achieved.

Not making those arrangements might have been honest incompetence, but it does void the election.

See the case cited earlier.

The media are carrying on as though the result of disputes could be civil war.

Since the Dred Scott case, SCOTUS has tended to avoid judgements that ultimately encourage civil war.

But there is no such problem now. There will be some “civil unrest” but neither side will go to war.

Of course, if it was a revolutionary communist party that would have won an election if it had not been rigged, one could rely on a bourgeois court not to “interfere”.

But it simply isn’t true that courts don’t care about whether elections are rigged between bourgeois parties.

Courts frequently do “interfere” because not doing so would undermine a fundamental source of stability for bourgeois rule. Without the regular opportunity to replace one set of misrepresentatives of the people by another, an awful lot of brute force would be required to maintain “law and order”. They would rather rule by peaceful means.

The following details actually matter. That is why they are not being discussed much.

Here is a list of the “battleground” States, disputed by Trump, with the number of electoral college votes apprently won by Biden followed by three letters representing the party affiliation (Democrat/Republican) of the State Governor, Lower House and Upper House followed by the full name of the State. Listed in order of importance (number of electoral college votes).

As far as I know, no other results are disputed by either side and there are no other States where the affiliation of the components of the State Government could affect the final outcome.

PA 20 DRR Pennsylvania
GA 16 RRR Georgia
MI 16 DRR Michigan
WI 10 DRR Wisconsin
AZ 11 RRR Arizona

NV  6 DDD Nevada

Total 79

Biden is apparantly the President elect, with a majority of 306 to 232 including the above 79. The total number of electors is 538 which makes 269 each a tie and the smallest possible majority 270 to 268.

There is no reason to think that SCOTUS would even consider assigning the electors apparently won by Biden to Trump instead.

There are many ways to change the apparent outcome while visibly letting it emerge from the political process.

All they need to do is cancel some of the current results and leave it to the political mechanisms of the legislative branch to sort out the consequences as clearly specified in the Constitutions and laws of the States and of the USA. See previous articles for the various permutations that could arise, in no way predetermined by the simple decision that certain elections had not been conducted according to law.

Unless there is an actual majority of at least 270 votes in the electoral college the President is chosen by the House of Representatives voting in State delegations rather than as individuals. Republicans hold a majority of seats in a majority of States. The Vice Presidet gets chosen by the Senate. In that situation the likely outcome is Trump and Pence. However a small number of Republicans in “Purple States” could switch the vote of their delegation to Biden, in which case the outcome could be Biden with Vice President Pence or perhaps Biden with Vice President Trump or whatever Republican the Senate chooses.

Note: If both Georgia Senate elections are won by Democrats on January 5 they still don’t have a majority for choosing the new Vice President on January 6 since Pence still has the casting vote. However there could also be switches from Republican Senators.

If all 6 battleground results were cancelled by SCOTUS and not replaced, Trump might apparently be President elect. Trump would still only have 232 but Biden would only have 227 remaining, which is even less.

If even the smallest of those States was not cancelled, the extra 6 votes from Nevada would put Biden ahead with 233 votes against 232 for Trump.

But I think that is irrelevant. Whether or not the proper interpretation of majority is based on 270 out of the total number of expected electors, or a majority among those actually counted on January 6 it is highly unlikely that none would be replaced.

There is explicit provision for the State legislatures to choose the electors for their State if they have not been chosen by the people in time for the December 8 deadline.

All the battlegrounds except Nevada have Republican legislatures and would choose Trump electors.

I don’t think there ever was any reason to imagine that any State legislature might attempt to change the electoral process after election day.

But if Nevada was the first State cancelled, could the Democrat State Governor restrain himself from convening the two houses of the Democrat legislature to fill the vacancies with the same Biden electors that were chosen by the people?

They might be stupid enough to do so. It is hard to think of any trap they have not enthusiastically jumped into.

Either way, if the people of any State would not be represented because SCOTUS has voided the elections it would be surprising if the legislature of that State did not act quickly to exercise their plenary power spelled out in the US Constitution to fill the vacancies in the electoral college. Apart from Nevada, in each of the other 5 battleground States both houses are Republican.

Just PA, MI and any one of the others would exceed the 38 needed to make Trump the apparent President elect by 270 to 268.

But there isn’t any need for that. Surprises do happen. The electoral college votes are certified by State governors. In MI, PA and WI the State governor is a Democrat. They might have a veto or they might just be too outraged or the legislature might not decide to fill the vacancies.

But it simply does not matter. If neither candidate gets more than 270 votes the election goes to the House of Representatives voting by State delegations. Not determined by SCOTUS at all and exactly as spelled out in the Constitution.

Could end up Trump. Might not. Many other permutations. Lots of sound and fury signifying nothing. Ideal breeding ground for a mass based right wing party.

the fake news and Rudy Giuliani… from Bill Kerr blog

Bill Kerr has asked me to share this from his blog ‘Viral Metamorphosis’…

* * * * * *

Did you think that the Trump legal team presenting their opening statement of their preliminary findings and goals about the Presidential election on November 3rd would be reported objectively?

What we received from the main stream media was a shit storm of abuse directed mainly at Rudy Giuliani. Here are some of the headlines:

The Washington Post: Rudy Giuliani’s post-election meltdown starts to become literal

CNN: Fact-checking Giuliani and the Trump legal team’s wild, fact-free press conference

Politico: Giuliani and fellow Trump lawyers crank out conspiracies as legal challenges implode

Financial Times: ‘Crazy’ allegations by Trump legal team prompt Republican rebukes

The Western Star: Trump lawyers’ wild, sweaty press conference

A few of the reports drew attention to Giuliani’s hair dye running down his face. Imagine the mindset of reporters who focus on that when evidence of massive election fraud is being outlined.

Back home one of the ABC News 24 “informative” pop ups reads “Donald Trump maintains false claim he wins the election”.

In my opinion the main problem is not Donald Trump. The attempts by the main stream media to manipulate our thinking is a much bigger problem. Rudy Giuliani is far, far more credible in the way he presents information than they are.

I invite you to watch the 90 minute presentation by the Trump legal team and make up your own mind: Rudy Giuliani and Trump Campaign Officials Hold News Conference at the RNC

How will this play out over the next few weeks? The most credible source I’ve found so far is Scott Adams, the Dilbert guy, who runs a daily entertaining / analytical podcast mainly (but not only) about this issue: here

covid-19 Update mid-November 000

I am still reading and not yet able to write a persuasive article.

But here’s my tentative view on current developments.

Victoria having zero “mystery cases” over fourteen days is a significant milestones achieved earlier than hoped for in the original “Roadmap”. Far more significant than the other two zeros – daily average cases and deaths. But 000 is still an “emergency”, although no longer a “disaster”.

The problem is that while things remain “as good as it gets” and even after the numbers start to rise, more and more people will act as though the emergency is over and ignore the monotonous repetion of official advice that it isn’t.

I did not expect zero “mysteries” over 14 days would be reached at all, because partially lifting restrictions in October would slow down the reduction in transmission prolonging the lockdown until it was abandoned without having actually eliminated community transmission.

I still think that happened – the restrictions were lifted too early so that the risks were not minimized. If lockdown had been maintained until 28 days with no “mystery cases” we could be significantly more certain of having eliminated community transmission.

But it is now plausible that 28 days could be achieved despite opening up. Even if 28 days was achieved there would still be some risk but it would be reasonable to describe as “minimal” in a context where the risk of outbreaks seeded from elsewhere would be much more important.

I still don’t expect that we will reach 28 days. But they have certainly achieved what they setout to do with an “aggressive suppression” strategy far closer to New Zealand’s elimination than the national framework.

The risk is now minimal in the sense that outbreaks that end up in a third wave that needs another lockdown are more likely to start in other Australian States than from residual local transmission in Victoria.

That may well be “as good as it gets”.

Certainly it is a good time to enjoy the opportunities available outdoors. (I have even had my annual haircut and beard trim!).

But precisely because people will indeed do so and opening up will accelerate, it is reasonable to expect that any residual transmission chains will become much harder to suppress when they eventually do become visible. It won’t get better over time.

While it is possible there may currently be none at all, I think it is far more likely that the remaining transmission chains would simply be harder to detect.

For example asymptomatic cases among school children could continue for quite a few generations before eventually some older person such as a parent or teacher becomes ill enough to get tested. If it happens to be a household in precarious employment, living in a community with a high proportion of other such households, it could be a few more generations before anyone gets sick enough to turn up at a hospital where they would certainly be tested. Because nobody has turned up at a hospital or other testing in 14 days we can be reasonably confident the numbers out there are quite small. With small numbers the stochastic character can either result in transmission dying out completely or exploding to higher numbers. The more the small numbers are in contact with others because restrictions have been lifted the higher the chances of transmission exploding.

Contact tracing works very well during lockdown because people have few contacts and know who or where they are.

After opening up it becomes a repeated game of “whack a mole” as in the “gold standard” of NSW. Note also today’s “mystery” in South Australia.

With greatly upgraded contact tracing and testing efforts, as well as slowly decaying compliance with physical distancing, registration etc, it will be quite feasible to deal with occasional, sporadic outbreak with a minimal risk of it spreading.

Then it is simply a matter of how many weeks you repeat taking that “minimal risk” before you end up needing to go into “surge” mode after more than 4 new confirmed cases (not in quarantine) per day per million population. Then how many times you repeat that risk of a surge before ending up exceeding surge capacity at 10 times that rate of new cases (40 per day per million) and having to go back into lockdown. See targets in:

I don’t think there is much risk of Australia ending up in the same situation as Europe or North America, let alone the rest of the world. When an Australian surge gets out of control at 40 cases per day per million, there should still be plenty of time before hospitals become overloaded for another lockdown to prevent that. (Victoria came nowhere near hospital overload despite delay in locking down resulting in 800 deaths from a peak of 750 cases per day).

How likely such a third wave is depends on how long before a vaccine has sufficient impact on transmission to eliminate the risk. (It also depends on many other factors, many hard to model).

Recent announcements suggest Australia could achieve herd immunity from vaccines by the end of next year.

It will certainly take a lot longer than that before the whole world has achieved eradication. I will discuss that and other issues such as testing etc in later articles.

I am certainly not in a position to estimate the probabilities of a third wave and lockdown in Australia better than the public health advisors who have been doing so.

But from what I have seen published about the models, I seriously doubt that they are in a good position to estimate either. Certainly their commitment to “stay open” hinders accurate estimation of when it becomes necessary to lockdown again.

That will also have to be for a later article.

Meanwhile, it is worth remembering that we are much less than half way through if it ends by the end of next year.

Some reduction in risk of transmission would result from the first tranche of vaccines targeted at Health and Aged Care workforces and others likely to be exposed and to expose others. But don’t assume a production line for vaccine and vaccine imports will produce a steady output of vaccine imports until herd immunity is achieved by the end of next year.

In fact the pilot plants for phase 3 testing have already continued production and some supplies may be available (elsewhere) as soon as approval is rushed through, perhaps even this month. The first mass production plants will also come onstream shortly after. But the requirement is for literally billions of doses.

I would assume there would be a classic “acceleration” as plants are first built to produce machines (bioreactors etc) and raw materials and train high tech workforces for new plants. Risks of a third wave might be significantly reduced when only half the population has immunity.

But don’t assume that occurs half way through next year. If the exponential growth doubles output each month then the half way point could be November next year with 100% following a month later.

Priority in deliveries should go to the poor countries that will be in a desperate situation by then. Australia with relatively few cases has major reponsibilities to assist others far worse off in our region, such as Papua New Guinea and Indonesia.

More likely the queue will be allocated supplies according to capacity to pay rather than need. Certainly individuals who can pay premium prices will be vaccinated before those given free supplies as a public health measure. There will be free distribution as a public health measure within capitalism, but there won’t be fully prioritized distribution according to need.

But the plants located in Europe and North America will have plenty of demand from local States that have far greater need than Australia and also have the capacity to pay for what they need.