Bush v. Gore Lawsuit from Pro-Trump PACs

Yesterday’s complaint in Great America PAC v. Wisconsin Elections Commission begins:

This lawsuit seeks to enjoin a recount that — like the ill-fated Florida recount the Supreme Court enjoined in Bush v. Gore, 531 U.S. 98 (per curiam) — fails to satisfy Equal Protection requirements, threatens to extend past the federally specified “safe harbor” deadline for choosing presidential electors, and — particularly in conjunction with other baseless recounts sought by a candidate who did not win a single presidential elector — may unjustifiably cast doubt upon the legitimacy of President-Elect Donald J. Trump’s victory.

Further down, the complaint alleges that Wisconsin’s standards for conducting the recount are too vague and indeterminate, although the quoted provisions of Wisconsin law are more specific than the intent-of-the voter standard deemed inadequate in Bush v. Gore.  For example, Wisconsin law says that votes should be counted if specified marks (such as an X, V, O, / or +) appear within the square by the candidate’s name or anywhere within the space where that name appears.  Whether Wisconsin’s legal standard is specific enough may depend on what’s actually going on in different localities where the recount is proceeding, a factual issue about which the complaint says virtually nothing.

The complaint also includes a due process claim, asserting that there’s a “substantial likelihood” that the recounts won’t be finished by deadline set forth in the federal safe harbor statute (3 U.S.C. 5).  I’m skeptical that there’s a real federal claim here.  Even aside from the speculative nature of this claim, federal law doesn’t require states to resolve post-election disputes by the safe harbor deadline (this year December 13) — it merely ensures that state determinations regarding electoral votes will be conclusive if they do.  There might be a state law claim, if Wisconsin law really mandates that recounts be completed by the safe harbor date and the recounts can’t be completed in time, but probably not a due process violation.

For coverage of this case, see Politico and NYT.


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