Election Law Blog

Roger Sollenberger for Salon.

You can watch here.

NYT:

President Trump suffered multiple legal setbacks in three key swing states on Friday, choking off many of his last-ditch efforts to use the courts to delay or block President-elect Joseph R. Biden Jr.’s victory.

In quick succession, Mr. Trump was handed defeats in Pennsylvania, Arizona and Michigan, where a state judge in Detroit rejected an unusual Republican attempt to halt the certification of the vote in Wayne County pending an audit of the count.

The legal losses came as Mr. Biden was declared the victor in Georgia and a day after an agency in the president’s own Department of Homeland Security flatly contradicted him by declaring that the election “was the most secure in American history” and that “there is no evidence” any voting systems malfunctioned.

On Friday, 16 federal prosecutors who had been assigned to monitor the election also directly debunked claims of widespread fraud, saying in a letter to Attorney General William P. Barr that there was no evidence of substantial irregularities.

Politico:

Much of the focus, however, has been on crafting lawsuits in three states that zero in on specific allegations of voting irregularities. In Arizona, the campaign has drawn attention to issues with voting machines. In Michigan and Pennsylvania, it is complaining about not having adequate observation at voting sites.

The Pennsylvania suit also revolves around the idea that voters in Democratic-heavy Philadelphia had more of an opportunity to “cure” improperly cast ballots than those in the more conservative parts of the state. While the Arizona case was dropped Friday, the Michigan and Pennsylvania cases are pending.

Campaign officials describe it as an incremental approach aimed at chipping away at Biden’s leads and creating margins that are small enough to force recounts. While they concede their lawsuits are unlikely to succeed, they insist they’re not frivolous.

But their strategy has resulted in a clash with Giuliani, who has advocated for more of a damn-the-torpedoes approach. The former New York City mayor has been working independently of the Trump legal apparatus. He’s gone on Fox News and made allegations of widespread voter fraud. Early on, he ordered lawsuits to be filed without the consent of the campaign’s legal team.

Things came to a head during a meeting at the White House last Friday, one day before the Four Seasons Total Landscaping imbroglio. As the group batted around options before the president, Giuliani interjected and derided them as insufficiently aggressive. Some in the room were taken aback.

During a Thursday meeting at the White House that was attended by the president, Giuliani accused Trump aides of lying to Trump about his chances. Clark aggressively pushed back, and the two shouted at one another. Vice President Mike Pence was also present. The encounter was first reported by the Times.

NYT:

President Trump’s last-ditch efforts to reverse the election seem to come down to a far-fetched scenario, one in which Republican-led state legislatures choose the members of the Electoral College, overturning the will of voters.

Could it work? Election law experts are highly skeptical. And leaders of the Republican majorities in legislatures in key states, including Pennsylvania, Michigan, Arizona and Georgia, told The New York Times this week through their offices that they saw no role for themselves in picking electors.

That has not stopped some high-profile supporters of the president, including the talk radio host Mark Levin and Gov. Ron DeSantis of Florida, from suggesting that Republican-led legislatures should consider ignoring the popular vote in close-fought states won by President-elect Joseph R. Biden Jr. and handing their electoral votes to Mr. Trump.

This political gambit, to the degree that it’s an organized strategy at all, has a theoretical basis in law, according to experts. But if it were to proceed, it could cause widespread outrage and be seen as an attempt to subvert the democratic process.

Philly Inquirer:

President Donald Trump’s effort to contest the Nov. 3 election in court suffered a series of setbacks Friday, leaving his house-of-cards legal strategy to reverse the results teetering on the edge of collapse.

The law firm leading Trump’s battles in Pennsylvania, Porter Wright Morris & Arthur, abruptly withdrew its representation — a decision a campaign spokesperson dismissed as the lawyers “buckling” under attacks from “liberal mobs.”

That left Linda Kerns, a solo practitioner in Philadelphia, as the primary attorney now representing the campaign on multiple legal fronts. But her in-person appearance in a Philadelphia courtroom Friday was scuttled, after the judge announced Trump’s legal team had been exposed to the coronavirus through meetings with campaign staff.

Meanwhile, the U.S. Court of Appeals for the Third Circuit rejected a request to overturn an earlier ruling on Pennsylvania’s three-day grace period for late-arriving mail ballots postmarked by Election Day — a fight Trump’s campaign has sought to take to the U.S. Supreme Court.

And defeats continued to add up elsewhere, including in Michigan, where a judge dismissed campaign accusations of fraud as “incorrect” and “not credible” and in Arizona, where Trump lawyers dropped a suit there, acknowledging the president trailed too far behind in that state’s vote tally for the legal challenge to make a difference. In Georgia, major news networks declared Biden the victor even as a state-mandated recount began.

All of that came as Joe Biden’s lead over Trump in Pennsylvania continued to widen — up to 60,000 votes — with vote counting drawing toward completion.

Detroit Free Press:

Wayne County Circuit Chief Judge Timothy M. Kenny on Friday denied a request for an independent audit of the votes cast by Wayne County voters, separate from the one already being undertaken by the county’s board of canvassers.

The lawsuit, filed this week against local election officials, alleges that they oversaw a fraudulent election in Detroit. The lawsuit asked the court to stop the certification of the county’s election results, void the Nov. 3 election and order a new one. President-elect Joe Biden won the county by a margin of nearly 323,000 votes.

In his opinion, Kenny wrote: “It would be an unprecedented exercise of judicial activism for this Court to stop the certification process of the Wayne County Board of Canvassers.” David Fink, the attorney who represented the City of Detroit, its Election Commission and City Clerk Janice Winfrey in the case, was pleased with Kenny’s ruling. “Once again, the court record showed conclusively the Detroit City Clerk ran a fair and proper election.” David Kallman, the lawyer who filed the lawsuit on behalf of two Wayne County residents, said he plans to file an emergency appeal in the Michigan Court of Appeals.

During a hearing Wednesday, Kallman accused local election officials of running a fraudulent election and argued that he had the right to ask the court to stop the certification of the election results….

One of the affidavits filed by a Republican challenger at TCF, who heard from other challengers that vehicles with out-of-state license plates delivered tens of thousands of ballots to TCF at 4:30 a.m., claimed that every one of these ballots were cast for president-elect Joe Biden. Kenny wrote that the affidavit was “rife with speculation and sinister motives.” The state’s deadline for returning absentee ballots is 8 p.m. on Election Day and all ballots were verified as having been cast by eligible voters before they were delivered to TCF, Thomas explained in his affidavit.

In evaluating another affidavit filed by a Republican challenger, Kenny wrote that the challenger posted on Facebook that the Democrats had planned to commit fraud on Election Day. “His predilection to believe fraud was occurring undermines his credibility as a witness,” the judge wrote.

Kenny also refuted the claim that Republican challengers were singled out in being prevented from reentering TCF when the counting area became overcrowded. During Wednesday afternoon’s hearing, Kallman resurfaced a false claim that went viral on social media channels and was repeated by President Donald Trump in a speech last week, that election officials barred Republican challengers from observing the counting process….

Judge Kenny denied a previous request to stop the certification of Wayne County’s election results in a separate case.

Two federal cases filed in the U.S. District Court for Western Michigan making similar allegations of election fraud are pending. One lawsuit — filed by four voters — asks the court to exclude the votes cast by Ingham, Washtenaw and Wayne county voters from the final tallies in the presidential contest and stop the certification of Michigan’s presidential electors if these counties’ votes are not excluded. That would amount to throwing out more than 1.2 million votes and would hand a victory in Michigan to President Donald Trump by a margin of over 323,000 votes. But the lawsuit faces a significant hurdle: Washtenaw’s Board of Canvassers certified the county’s election results Thursday. Another lawsuit — filed by the Trump campaign — asks the court to stop the Board of State Canvassers from certifying the election results.

Andrew Appel blogs.

CNN reports.

Listen here.

Reuters:

Top U.S. cybersecurity official Christopher Krebs, who worked on protecting the election from hackers but drew the ire of the Trump White House over efforts to debunk disinformation, has told associates he expects to be fired, three sources familiar with the matter told Reuters.

Krebs, who heads the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), did not return messages seeking comment. CISA and the White House declined comment.

Separately, Bryan Ware, assistant director for cybersecurity at CISA, confirmed to Reuters that he had handed in his resignation on Thursday. Ware did not provide details, but a U.S. official familiar with his matter said the White House asked for Ware’s resignation earlier this week.

The departure is part of the churn in the administration since Republican President Donald Trump was defeated by Democrat Joe Biden in last week’s election, raising concerns about the transition to the president-elect who would take office on Jan. 20. Trump, who has yet to concede and has repeatedly made unsubstantiated claims of electoral fraud, fired Defense Secretary Mark Esper and has installed loyalists in top positions at the Pentagon.

NLJ:

Ted Olson, who successfully argued for then-candidate George W. Bush in the 2000 U.S. Supreme Court case Bush v. Gore, said Thursday he believes the 2020 election is over and Joe Biden is the president-elect.

Olson, a partner with Gibson, Dunn & Crutcher who went on to serve as solicitor general in the Bush administration, made the remarks during a panel on the powers of the presidency hosted by the Federalist Society, as he discussed checks against the president.

“The Framers, they separated the powers because they knew that individuals would be flawed. They put in lots of checks, and we just experienced one, the election,” Olson said. “To the extent that the citizens of this country did not like the manner in which President Trump spoke, or the manner in which he threatened people or the manner in which he executed the laws, they exercised their franchise. And we have—I do believe the election is over—we do have a new president.”

“And we do because a large number of people expressed disapproval, whether one agrees with that or not, of the manner, style and techniques of this particular president,” Olson continued. “So we do have a Constitution that works pretty well. At the end of the day, we are going to have flawed individuals holding that office, and the people ultimately have the responsibility and opportunity to make a change when they feel it’s appropriate.”

Statement:

The members of Election Infrastructure Government Coordinating Council (GCC) Executive Committee – Cybersecurity and Infrastructure Security Agency (CISA) Assistant Director Bob Kolasky, U.S. Election Assistance Commission Chair Benjamin Hovland, National Association of Secretaries of State (NASS) President Maggie Toulouse Oliver, National Association of State Election Directors (NASED) President Lori Augino, and Escambia County (Florida) Supervisor of Elections David Stafford – and the members of the Election Infrastructure Sector Coordinating Council (SCC) – Chair Brian Hancock (Unisyn Voting Solutions), Vice Chair Sam Derheimer (Hart InterCivic), Chris Wlaschin (Election Systems & Software), Ericka Haas (Electronic Registration Information Center), and Maria Bianchi (Democracy Works) – released the following statement:

“The November 3rd election was the most secure in American history. Right now, across the country, election officials are reviewing and double checking the entire election process prior to finalizing the result. 

“When states have close elections, many will recount ballots. All of the states with close results in the 2020 presidential race have paper records of each vote, allowing the ability to go back and count each ballot if necessary. This is an added benefit for security and resilience. This process allows for the identification and correction of any mistakes or errors. There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.

“Other security measures like pre-election testing, state certification of voting equipment, and the U.S. Election Assistance Commission’s (EAC) certification of voting equipment help to build additional confidence in the voting systems used in 2020.

“While we know there are many unfounded claims and opportunities for misinformation about the process of our elections, we can assure you we have the utmost confidence in the security and integrity of our elections, and you should too. When you have questions, turn to elections officials as trusted voices as they administer elections.”

CNN:

Cracks are growing in the GOP defense of President Donald Trump’s long-shot effort to overturn the 2020 election outcome, with many top Republicans contending that Joe Biden should immediately get national security briefings, some calling for the official transition process to begin and others are acknowledging that Trump stands little chance at reversing results clearly showing he lost.

Republicans say they are willing to give Trump a chance to make his case in court. But they fully recognize that Trump is losing by margins in key battleground states that make his chances of success in his legal cases extremely grim at best. Many have grown unnerved at his purge of top national security officials. And others are making clear that Trump should concede the race once it’s evident that he’s lost his court challenges.Some are even willing to now consider Biden “president-elect,” a title few Republicans have been willing to say publicly as Trump baselessly claims the election has been rigged.

“Sure,” Sen. Shelley Moore Capito, a West Virginia Republican, said when asked if she considers Biden “president-elect.”

While Capito says there’s a “process” for legal challenges, she added that she hoped the process would resolve itself quickly — “inside a week or so.”

“It looks like a difficult mountain for the President,” she said of his legal case.

Capito is not alone. Many Republicans privately recognize that Biden will soon be President, and they are hoping that Trump will concede the race once it’s clear his legal challenges are collapsing — and once key states have certified the results.

A top Republican source, who has been in touch with Trump’s daughter Ivanka Trump and her husband, Jared Kushner, said Republicans are eying the certification dates of Arizona on November 30 and Georgia on November 20 — two states with Republican governors where Biden is now leading in the vote tallies — as key moments. If the states certify the results as Biden victories, then Trump will have little recourse but to concede, they believe, though no one knows what the President will do for sure.

“I think it’s a very narrow road,” Wyoming Sen. John Barrasso, a member of the Senate GOP leadership, said when asked about Trump’s chances at reversing the election’s outcome.

Indeed, with Trump losing by tens of thousands of votes in key states such as Pennsylvania, Wisconsin and Nevada — and nearly 150,000 votes in Michigan — even Trump’s staunchest supporters believe that the President should concede the race if he can’t prove widespread voter fraud in court. What’s less clear is what would happen if Trump refuses to step aside if courts reject his claim.

“My guess is it’s a heavy lift, but I don’t know,” said Sen. Ron Johnson, a Wisconsin Republican and top Trump defender, when asked about the President’s efforts to overturn the results by alleging mass voter fraud and impropriety at the polls.

Asked if Trump should concede if he loses in court, Johnson said: “Yeah. The court should have the final say in these things.”

I expected it would be weak based on the 105-page complaint, but this motion is even weaker than I thought. The primary complaint is one about which the campaign might not even have standing—a claim that the ordinary rules that election officials applied in running the election somehow usurped the power of the state legislature to set the rules for elections. That’s something for the legislature to complain about, and something that the campaign could have complained about well before the election. The same goes for its equal protection argument.

They cite no authority for asking a federal court for delay in state certification, and no good explanation as to why a delay would help to further the state’s case.

There are many other problems here, and I hope to have time later to go through this more.

But I’m co-Reporter on the ALI Torts:Remedies project, which is meeting all day Friday, so I’ll mostly be out of pocket through tomorrow.