Election Law Blog

WSJ reports.

In Reuters interviews with 50 Trump voters, all said they believed the election was rigged or in some way illegitimate. Of those, 20 said they would consider accepting Biden as their president, but only in light of proof that the election was conducted fairly. Most repeated debunked conspiracy theories espoused by Trump, Republican officials and conservative media claiming that millions of votes were dishonestly switched to Biden in key states by biased poll workers and hacked voting machines.

Many voters interviewed by Reuters said they formed their opinions by watching emergent right-wing media outlets such as Newsmax and One American News Network that have amplified Trump’s fraud claims. Some have boycotted Fox News out of anger that the network called Biden the election winner and that some of its news anchors – in contrast to its opinion show stars – have been skeptical of Trump’s fraud allegations. …

It may not be the last time. Many Republicans see attacks on election integrity as a winning issue for future campaigns – including the next presidential race, according to one Republican operative close to the Trump campaign. The party, the person said, is setting up a push for “far more stringent oversight on voting procedures in 2024,” when the party’s nominee will likely be Trump or his anointed successor.

Many Republican voters scoff at those results, convinced Trump was cheated. Raymond Fontaine, a hardware store owner in Oakville, Connecticut, said Biden’s vote total – the highest of any presidential candidate in history – makes no sense because the 78-year-old Democrat made relatively few campaign appearances and seemed to be in mental decline….

“You are going to tell me 77 million Americans voted for him? There is just no way,” said Fontaine, 50….

Rory Wells, 51, a New Jersey lawyer who attended a pro-Trump “stop the steal” election protest in Trenton last week, said he now watches Newsmax because Fox isn’t sufficiently conservative.

“I like that I get to hear from Rudy Giuliani and others who are not immediately discounted as being crazy,” he said of Trump’s lead election lawyer.

Newsmax CEO Chris Ruddy said the network’s viewership has exploded since the election, with nearly 3 million viewers nightly via cable television and streaming video devices.

In Sundown, Texas, Mayor Jonathan Strickland said there’s “no way in hell” Biden won fairly. The only way he’ll believe it, he said, is if Trump himself says so.

“Trump is the only one we’ve been able to trust for the last four years,” said Strickland, an oilfield production engineer. “As far as the civil war goes, I don’t think it’s off the table.”

If it comes to a fight, Caleb Fryar is ready. But the 26-year-old son of Brett Fryar, the chiropractor, said he hoped Trump’s fraud allegations would instead spark a massive mobilization of Republican voters in future elections.

Asked whether Trump might be duping his followers, he said it’s hard to fathom.

“If I’m being manipulated by Trump … then he is the greatest con man that ever lived in America,” Caleb Fryar said. “I think he’s the greatest patriot that ever lived.”

AZ Central:

Maricopa County’s election results are certified and final.

The Maricopa County Board of Supervisors, the elected body that oversees elections in Arizona’s most populous county, voted unanimously on Friday to approve the results of this month’s general election.

The majority-Republican supervisors did so after spending hours on Friday afternoon asking election officials who oversaw the voting process numerous questions related to election fairness, security, technology and oversight.

Before the vote, the supervisors, four Republicans and one Democrat, said they were satisfied with the answers.

Republican chairman Clint Hickman said there was no proof of fraud or misconduct in the election and he was confident that voters were provided with a fair election. He said that he “learned a lot about the character of people in this community” on the matter, and he would not “violate the law or deviate from my own moral compass,” even though he said that’s what some had pressured him to do.

“No matter how you voted, this election was administered with integrity, transparency, and most importantly in accordance with Arizona state laws,” Hickman said.

Journal-Sentinel:

“The Trump campaign is continually revisiting issues that the commission has ruled on, such as observers saying that they cannot see when, again, that was addressed already,” Christenson said to explain what is slowing the process.

There appeared to be a disconnect between the attorneys arguing before the three-member Board of Canvassers and the attorneys acting on behalf of the Trump campaign in the aisles and the observers at each of the tables where the counting is taking place, he said.

Another issue, he said, is that the observers are “disruptive,” asking question after question and telling the election workers to stop what they’re doing.

“It’s not our job to train their observers on what they’re observing,” he said. “They clearly don’t know what they’re doing and so they keep asking questions. And we’ve said to the Trump campaign, you need to tell your people what you’re looking for here because they’re objecting to every ballot.”

Observers need to ask the campaigns if they have questions, not the election workers, he said.

He said he believed a total of three ballots from Bayside and Hales Corners were rejected so far.

AP reports.

More to come when I have time, but start here:

Here’s the current third circuit standard, which shows that the must be a showing of BOTH a likelihood of success AND irreparable harm, not, as the old case states “A sufficiently strong showing on either the likelihood of success or irreparable harm may justify an injunction”:

We also are aware that, significantly later than this confusion arose, the Supreme Court stated that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). At first blush that statement would lend support to the divergent standard articulated in Opticians Association of America almost twenty years earlier. But for four reasons we think Winter did not overrule our balancing-of-the-factors standard.

First, the Supreme Court in Winter explained that “[i]n each case … courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24, 129 S.Ct. 365 (emphasis added) (quotation omitted). It concluded that “[a]n injunction is a matter of equitable discretion” that requires “the balance of equities.” Id. at 32, 129 S.Ct. 365 (emphasis added). That is why Justice Ginsburg determined that the 178*178 “Court has never rejected [the balancing] formulation, and [did] not believe it [did] so” in Winter. Id. at 51, 129 S.Ct. 365 (Ginsburg, J., dissenting).

That reading of Winter comports with the Supreme Court’s following opinion on temporary equitable orders, Nken v. Holder, 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009), decided in the same term just five months later (with both opinions written by Chief Justice Roberts). There the Court explained that a district court must undertake “consideration of [the] four factors.” Id. at 434, 129 S.Ct. 1749. “Once an applicant satisfies the first two factors, the traditional [equitable relief] inquiry calls for assessing the harm to the opposing party and weighing the public interest.” Id. at 435, 129 S.Ct. 1749. Though Nken dealt with the issuance of a stay pending appeal, the Court explained that the same factors apply as in the preliminary injunction context “not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.” Id. at 434, 129 S.Ct. 1749. Read together, these companion cases promote the traditional flexibility to granting interim equitable relief in which the district court has full discretion to balance the four factors once gateway thresholds are met. See id.; Winter, 555 U.S. at 32, 129 S.Ct. 365.

Second, other circuits have agreed with our reading of Winter and Nken. For instance, the Seventh Circuit, citing Winter, has held that a preliminary injunction may issue if the movant demonstrates it will face irreparable harm and has a “plausible claim on the merits,” after which “the `balance of equities’ favors” the movant. Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (Easterbrook, C.J.). “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Id. Similarly, citing Winter, the D.C. Circuit has declined “to abandon the so-called `sliding scale’ approach to weighing the four preliminary injunction factors” and held that a “party seeking a preliminary injunction must make a clear showing that [the] four factors, taken together, warrant relief….” League of Women Voters of the United States v. Newby, 838 F.3d 1, 6-7 (D.C. Cir. 2016) (emphasis added) (quotations omitted). The Second Circuit also has interpreted Winter and Nken as permitting a district court to continue a “flexible approach” in granting preliminary equitable relief, and that if those cases meant “to abrogate the more flexible standard for a preliminary injunction, one would expect some reference to the considerable history of the flexible standards applied in [the Second Circuit], seven [other] sister circuits, and the Supreme Court itself.” Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund, Ltd., 598 F.3d 30, 37-38 (2d Cir. 2010). We find that reasoning persuasive.

Third, no test for considering preliminary equitable relief should be so rigid as to diminish, let alone disbar, discretion. District courts have the freedom to fashion preliminary equitable relief so long as they do so by “exercising their sound discretion.” Winter, 555 U.S. at 24, 129 S.Ct. 365 (quotation omitted). Because those courts are on the frontline and are much more familiar with the unique facts of a particular case, we apply a deferential standard in reviewing their decisions on preliminary equitable relief — abuse of discretion. See Campbell Soup Co., 977 F.2d at 91 (quotation omitted). Indeed, “[t]he essence of equity jurisdiction has been the power of the [court] to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (quotations omitted).

179*179 Fourth, disallowing a district court from balancing the four factors is inconsistent with the Supreme Court’s post-Winter instruction in Nken that, when evaluating whether interim equitable relief is appropriate, “[t]he first two factors of the traditional standard are the most critical.” 556 U.S. at 434, 129 S.Ct. 1749. An Opticians Association of America standard — in which all four factors are effectively critical in equal recourse — is logically incompatible with Nken‘s unambiguous holding. What would be the point of creating two gateway factors by placing elevated value on them if all are equally imperative? There would be none. And to require a moving party to prevail on all factors reads out balancing when not all factors favor that party.

Accordingly, we follow our precedent that a movant for preliminary equitable relief must meet the threshold for the first two “most critical” factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not^[3]) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief^[4]. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief. In assessing these factors, Judge Easterbrook’s observation bears repeating: “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Hoosier Energy, 582 F.3d at 725.

Historians weigh in on this at the Washington Post. Here is a passage from the Anti-Federalists, who opposed the Constitution — this is about their fear of the new office of the President:

… We may also suppose, without trespassing upon the bounds of probability, that this man may not have the means of supporting, in private life, the dignity of his former station; that like Caesar, he may be at once ambitious and poor, and deeply involved in debt. Such a man would die a thousand deaths rather than sink from the heights of splendor and power, into obscurity and wretchedness.”

This is the abstract from a new study, published by Yosef Bonaparte:

We demonstrate that since the early 1990’s, it is becoming increasingly common for firms to be run by CEOs who are aligned with the Democratic Party, which we refer to as the blue trend. We find evidence that at least one factor driving this trend appears to be the rise of the role of women, who tend to have values that align with the Democratic Party. Further, we find that the blue trend is stronger in industries that are more considerable to women as a source of employees or customers (e.g., hospitality, computers, etc.). Nevertheless, the trend appears to be quite pervasive, as nearly 75% of industries turned bluer. The blue trend also has several implications on corporate governing and on the overall stock market performance and volatility, as the presence of more CEOs who are aligned with the Democratic Party is associated with the lower overall stock market returns. Collectively, our evidence suggests that there is a change in the leadership on Wall Street and that has implications for corporate culture, and the stock market landscape.

The latest:

Rob Kelner:

The Hill:

The lawyers have not taken that claim to court and have not provided any evidence to support it.

“This is delusional,” said Mark Braden, the former chief counsel at the RNC. “I’m a professional Republican so it’s not easy for me to have to deal with my friends on this. Look — voter fraud occurs. I’ve seen it. It happens. But you have to be realistic about the size and scope of it.”

Republican lawyers interviewed by The Hill said Trump’s early legal challenges on voter fraud were defensible and reasonable, even if they had no chance of changing the outcome of the election. But they’re disturbed by the dark turn things have taken, and worried that Trump’s claims are undermining democracy and misleading millions of his own supporters.

“The Venezuelans didn’t screw around with the voting machines,” Braden said. “That’s 100 percent total nonsense. I don’t know what’s going on here. It’s very dangerous that we’re undermining the system. Democracy isn’t a God-given right. It’s a fragile process. The two most important things are that the person with the most lawful votes wins, and that the people who voted for the losing side also believe their candidate lost. This is undermining that idea and it’s a dangerous thing.”

CNN:

A GOP Senate source told CNN that the combination of Giuliani’s news conference, as well as the President meddling in the Michigan election process, has some GOP senators reconsidering their silence. This source says most had hoped that Trump’s tirade would have worked itself out by now, but his actions in the last 24 hours make that hope seem more and more distant.

According to the same source, a handful of GOP senators are talking about whether and how to interject in a way that will be most effective with the President. There is some talk of trying to speak to Trump and trying to implore him to go out on a high note by touting wins in the House, as well as helping win the two outstanding US Senate seats in Georgia and taking credit for the Covid-19 vaccine movement, among other accomplishments.

The source emphasized, however, that this is not a leadership position right now — more rank and file Republicans….

North Carolina Rep. Richard Hudson, who will serve on the House GOP’s leadership team in the next Congress, on Friday characterized the unsubstantiated allegations leveled by the Trump team as “breathtaking” and “serious enough that they need to be investigated.”

Hudson said “yes,” states should delay certifying the results until the allegations are “adequately investigated.”

Asked if he’d be OK if state legislatures named electors that differed from the outcome of the vote counts in their states, Hudson told CNN: “Yeah, that’s the constitutional process.”

“I mean, it’s breathtaking to think about,” Hudson said of the allegations. “And if it’s not true, then there needs to be a reckoning on our side.”

Federal law encourages states to resolve disputes over vote-counting by December 8, six days before electors meet in their state capitals to cast their ballots. If Biden’s win is certified by December 8, Congress must recognize the pro-Biden electors.

Under the long-shot theory, Republican-led legislatures could appoint pro-Trump slates of presidential electors, even if Biden carried the popular vote in their state, assuming a state has not certified the vote in time.A

sked on Thursday if his state should delay certifying the election, Arizona Rep. Paul Gosar told CNN: “I believe it should.” Gosar also said the “state has the ability” to name its own electors to the Electoral College if the results aren’t certified as part of the “system set up by our founders.” And when asked if he would support the state legislature naming its own electors, Gosar said: “I do.”

National Review editorial:

The Rudy Giuliani–led press conference at the RNC yesterday was the most outlandish and irresponsible performance ever by a group of lawyers representing a president of the United States.

If Giuliani’s charge of a “national conspiracy” to produce fraudulent votes in Democratic cities around the country wasn’t far-fetched enough, attorney Sidney Powell ratcheted it up with the allegation that Communist-designed election machinery was used to change the vote from a Trump landslide to a narrow Biden victory. An obvious question is why, if you can manipulate the vote count via machine, you’d need to bother with old-fashioned fraudulent ballots. Powell’s story is that the surprisingly strong Trump turnout “broke the algorithm” of the corrupted machines, and then the fraudulent ballots were desperately hauled in to make up the difference.

This is lawyering worthy of the comments section of Breitbart News.

Detroit News:

In a Thursday meeting punctuated by outbursts from attendees, a wheelbarrow full of letters and repeated calls to order, two county clerks recommended a raft of election changes during the first testimony taken in a legislative inquiry into the Nov. 3 election. 

The three-hour joint oversight committee hearing was the first to take testimony on Michigan’s Nov. 3 election, where unproven allegations of election fraud and ballot irregularities prompted Michigan lawmakers to subpoena voting-related records from the state to examine the issues. 

Some attendees seeking to “Stop the Steal” attended the meeting, grumbling about some responses and laughing when witnesses said dead voters did not vote in Michigan. 

Democratic lawmakers questioned the value of the hearing. Democratic Rep. Cynthia Johnson of Detroit yelled at the end of the meeting when she didn’t get a question in, and criticized the GOP-led Legislature for holding such a meeting during a pandemic. She was gaveled down by Republican Sen. Ed McBroom of Vulcan.

Politico:

Another bid by an ally of President Donald Trump to overturn the results of this month’s election was roundly rejected in court on Thursday, as a federal judge appointed by Trump turned down a bid to block the certification of President-elect Joe Biden as the victor in Georgia.

At the conclusion of a three-hour virtual hearing, U.S. District Court Judge Steven Grimberg delivered a withering assessment of the suit that a prominent attorney, Lin Wood, filed to try to stop officials from finalizing a tally that has Trump trailing Biden by more than 12,000 votes.

Grimberg said it was clear that, as an individual voter, Wood lacked legal standing to mount the challenge to Georgia’s election procedures. But the judge — a former prosecutor whom Trump nominated last year — also emphasized that evidence of improprieties seemed limited to isolated cases and far short of what would be needed to justify a federal judge stepping in to alter the state’s election results.

“It would require halting the certification of results in a state election in which millions of people have voted,” the judge said. “It would interfere with an election after the voting was done.”

The judge also seemed to allude to the acrimonious atmosphere surrounding the election as a reason to be wary about interfering in the process as Wood requested.

“It harms the public interest in countless ways, particularly in the environment in which this election occurred,” Grimberg said. “To halt the certification at literally the 11th hour would breed confusion and potentially disenfranchisement that I find has no basis in fact or in law.”

There’s a simple mathematical confusion in this filing. The filing says:

“Instantly, if discovery is granted, prior to the hearing, Plaintiffs will examine these envelopes to determine the percentage of mail ballots that were illegally counted –of which Democratic Candidate Joseph Biden won approximately 75% and President Trump 25%, a 50% margin for Biden.”

That is not a 50% margin for Biden.  It is a 50 percentage point margin.  In fact, Biden received three times more of the absentee vote than did Trump. The difference between percentages and percentage points is often very large, as this example illustrates.

This is not the worst mistake in the world. It is not uncommon to confuse percentage points and percentages. Still, this is a legal filing in federal court.

Here’s the filing.

Also pending is the motion to dismiss.

Briefing ends Saturday and certification can come as early as Monday, so I expect a ruling on Saturday or Sunday.

Details:

AP reports.

They got caught. As you’d expect.