Via Tierney Sneed at CNN, comes this cert. petition before the Supreme Court in No. 22-1138. Eastman is asking for a Munsingwear vacatur of a federal district court ruling, which would wipe that case off the books on grounds it is moot. The case held that Trump and Eastman likely committed a crime in how they tried to interfere with the electoral college vote and turn an election loser into an election winner. Eastman now argues the case is moot because the documents and been released, and the ruling “created a stigma for both Petitioner and his client, the former President of the United States and current candidate for the presidency.”
Of particular interest to me was Eastman’s warped view of the facts of the 2020 election aftermath in his brief. It makes no mention of the crimes that Eastman and Trump were accused of participating in, only indirectly suggesting that Eastman did nothing wrong.
It also wrongly suggests that because the Wisconsin Supreme Court more than a year after the 2020 election found the use of drop boxes did not comply with Wisconsin law, that “thousands of illegal votes [were] included in certified votes in the election.” That is false. There was no finding that any illegal votes were cast in Wisconsin via drop boxes, even if the method used to collect those ballots cannot be used in future elections. Teigen v. Wis. Elections Comm’n, 976 N.W.2d 519 (Wis. 2022), did not involve any allegation that ballot drop boxes were used to commit election fraud, and there was no credible evidence presented that drop boxes in Wisconsin or anywhere else facilitated such fraud. Id. at 583 (Ann Walsh Bradley, J., dissenting) (“There is no evidence at all in this record that the use of drop boxes fosters voter fraud of any kind. None. And there certainly is no evidence that voters who used drop boxes voted for one candidate or party or another, tilting elections either direction.”); see also Trump v. Biden, 951 N.W.2d at 583 (Hagedorn, J., concurring) (“At the end of the day, nothing in this case casts any legitimate doubt that the people of Wisconsin lawfully chose Vice President Biden and Senator Harris to be the next leaders of our great country.”).
Eastman’s brief also wraps itself in the most extreme version of the independent state legislature theory, suggesting any time a state or local administrator administered an election in a way not explicitly described in a state statute, the election was conducted illegally. (See my amicus brief in Moore v. Harper for the absurdity of this position.)
Given Ginni Thomas’s involvement in some of these same events, I hope that Justice Thomas will be recusing from considering this cert. petition.
Below the fold you can find Eastman’s statement of facts:
That the 2020 presidential election was controversial, both in its conduct and its result, is beyond dispute. State agencies altered voting procedures without participation of the Legislature – an issue related to the issue before this Court in Moore v. Harper (No. 21-1271). Members of this Court noted the problem in a statement on the denial of a motion to expedite consideration of petition for writ of certiorari in Republican Party of Pennsylvania v. Bookvar, 592 U.S. _ (2020), (Statement of Alito, J., joined by Thomas, J., and Gorsuch, J.) (“The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office.”) The Wisconsin Supreme Court has ruled that the Wisconsin Election Commission’s decision to provide unstaffed ballot drop boxes was illegal. Tiegen v. Wisconsin Elections Comm’n, 976 N.W. 2d 519, 539 (Wisc. 2022). The state commission also permitted ballot harvesters to deposit ballots into the unstaffed drop boxes. This resulted in thousands of illegal votes being included in the certified results of the election. Id. at 556 n.4.
Based on these and numerous other irregularities and violations of law, former President Trump retained a team of attorneys to challenge the results of the election. When Texas filed an original action in this Court challenging the illegal conduct of the election by non-legislative officials in four States, Dr. Eastman filed a motion to intervene on behalf of the former President. After Texas’s motion for leave to file the original action was denied by this Court, Dr. Eastman (together with the Marks law firm in Pennsylvania) filed a petition for writ of certiorari and motion for expedited consideration challenging three decisions of the Pennsylvania Supreme Court altering
state election law that had been adopted by the legislature of Pennsylvania pursuant to its authority under Article II of the Constitution to direct the manner
of choosing president electors. When an eligible judge
had not been appointed for nearly a month to hear an
election challenge filed in Georgia in early December,
2020, Dr. Eastman (together with the Hilbert law firm
in Georgia) filed a federal court action in the Northern
District of Georgia. And when none of these courts
took up the merits of the former President’s allegations of illegality, Dr. Eastman advised, based on historical and scholarly research, that in his role as presiding officer of the joint session of Congress, the Vice President accede to requests from more than a hundred state legislators for a brief delay in the certification of presidential electors to allow time for the legislatures to assess the impact of the illegality on the results of the election. Former Vice President Pence declined to accede to the legislators’ requests for delay, and after a 4-hour delay caused by an incursion into the Capitol by rioters, the joint session proceeded to certify the election of Joe Biden as President.