Given all we heard about postal delays, that’s very good news.
Joe Biden’s lead in the presidential election results in Pennsylvania has now surpassed 81,000 votes, far exceeding Donald Trump’s 44,000-vote victory margin there four years ago. Yet the Trump campaign continues to claim in court huge but incalculable levels of fraud, particularly in Philadelphia.
As with cases filed elsewhere around the country, Mr. Trump will not succeed. Even a cursory examination of the data refutes any notion of substantial voting fraud…
Just because Mr. Biden did worse than Mrs. Clinton and underperformed expectations this year does not disprove possible fraud, of course. Central to the “bad things are happening in Philadelphia” claim by Mr. Trump is the notion that a suspicious number of absentee ballots came in for Mr. Biden in Philadelphia. Absentee ballot fraud — either from dead people voting or election officials stuffing ballot boxes — is central to the Trump campaign’s claim of a stolen election. Again, the available evidence suggests nothing irregular.
Mr. Biden received a higher percentage of the vote by mail than he did in the Election Day vote throughout the state. Philadelphia, which is much more Democratic than the rest of the state — 76 percent of the county’s voters are registered as Democrats, compared to 47 percent statewide — lies just where we would expect it to be, given the partisanship of the county.
Skeptics of this analysis are likely to say that it is irrelevant, because the margins were so close that even a small number of manufactured ballots could make a difference. To this, we offer two rebuttals.
The first is that Mr. Biden’s lead in the state, over 81,000 votes, is not close, and continues to grow. Second, for Mr. Biden’s lead to be the result of “stuffed” absentee ballots in Philadelphia would require that over 20 percent of mail ballots there to have been fraudulent. Such a large number of questionable ballots would have tripped off alarm bells for the Democratic and Republican officials who were overseeing the count.
Statistical evidence such as this should not be necessary to cast doubt on the fraud claims being made in court by Mr. Trump’s campaign. The arguments simply are implausible on their face, in Pennsylvania and elsewhere. The allegations suggest a conspiracy or a remarkable coincidence of Republican and Democratic election officials in multiple states looking past or covering up hundreds of thousands of illegal votes.
That’s not all that is implausible. The purported fraud appears to have affected only the top of the ballot and not the down-ballot races. Republican congressional candidates were surprisingly successful in those same states where allegations of illegality in the presidential race have been made.
WaPo:
President Trump has abandoned his plan to win reelection by disqualifying enough ballots to reverse President-elect Joe Biden’s wins in key battleground states, pivoting instead to a goal that appears equally unattainable: delaying a final count long enough to cast doubt on Biden’s decisive victory.
On Wednesday, Trump’s campaign wired $3 million to election officials in Wisconsin to start a recount in the state’s two largest counties. His personal lawyer, Rudolph W. Giuliani, who has taken over the president’s legal team, asked a federal judge to consider ordering the Republican-controlled legislature in Pennsylvania to select the state’s electors. And Trump egged on a group of GOP lawmakers in Michigan who are pushing for an audit of the vote there before it is certified.
Giuliani has also told Trump and associates that his ambition is to pressure GOP lawmakers and officials across the political map to stall the vote certification in an effort to have Republican lawmakers pick electors and disrupt the electoral college when it convenes next month — and Trump is encouraging of that plan, according to two senior Republicans who have conferred with Giuliani and spoke on the condition of anonymity to discuss the matter candidly.
But that outcome appears impossible. It is against the law in Pennsylvania, Wisconsin law gives no role to the legislature in choosing presidential electors, and there is little public will in other states to pursue such a path.’
Behind the thin legal gambit is what several Trump advisers say is his real goal: sowing doubt in Biden’s victory with the president’s most ardent supporters and keeping alive his prospects for another presidential run in 2024.
The shift in strategy comes after the president has suffered defeat after defeat in courtrooms around the country. And it serves as a tacit acknowledgment that Trump has failed to muster evidence to support his unfounded claims about widespread fraud.
Getting nowhere in the courts, President Donald Trump’s scattershot effort to overturn President-elect Joe Biden’s victory is shifting toward obscure election boards that certify the vote as Trump and his allies seek to upend the electoral process, sow chaos and perpetuate unsubstantiated doubts about the count.
The battle is centered in the battleground states that sealed Biden’s win.
In Michigan, two Republican election officials in the state’s largest county initially refused to certify results despite no evidence of fraud, then backtracked and voted to certify and then on Wednesday flipped again and said they “remain opposed to certification.” Some Republicans have called on the GOP statewide canvassers to so the same. In Arizona, officials are balking at signing off on vote tallies in a rural county.
The moves don’t reflect a coordinated effort across the battleground states that broke for Biden, local election officials said. Instead, they seem to be inspired by Trump’s incendiary rhetoric about baseless fraud and driven by Republican acquiescence to broadsides against the nation’s electoral system as state and federal courts push aside legal challenges filed by Trump and his allies.
Still, what happened in Wayne County, Michigan, on Tuesday and Wednesday was a jarring reminder of the disruptions that can still be caused as the nation works through the process of affirming the outcome of the Nov. 3 election.
There is no precedent for the Trump team’s widespread effort to delay or undermine certification, according to University of Kentucky law professor Joshua Douglas.
“It would be the end of democracy as we know it,” Douglas said. “This is just not a thing that can happen.”….
In Wayne County, the two Republican canvassers at first balked at certifying the vote, winning praise from Trump, and then reversed course after widespread condemnation. A person familiar with the matter said Trump reached out to the canvassers, Monica Palmer and William Hartmann, on Tuesday evening after the revised vote to express gratitude for their support. Then, on Wednesday, Palmer and Hartmann signed affidavits saying they believe the county vote “should not be certified.”
WaPo:
After three hours of tense deadlock on Tuesday, the two Republicans on an election board in Michigan’s most populous county reversed course and voted to certify the results of the Nov. 3 election, a key step toward finalizing President-elect Joe Biden’s victory in the state.
Now, they both want to take back their votes.
In affidavits signed Wednesday evening, the two GOP members of the four-member Wayne County Board of Canvassers allege they were improperly pressured into certifying the election and accused Democrats of reneging on a promise to audit votes in Detroit.
“I rescind my prior vote,” Monica Palmer, the board’s chairwoman, wrote in an affidavit reviewed by The Washington Post. “I fully believe the Wayne County vote should not be certified.”
William Hartmann, the other Republican on the board, has signed a similar affidavit, according a person familiar with the document. Hartmann did not respond to a message from The Post.
Jonathan Kinloch, a Democrat and the board’s vice chairman, told The Post it’s too late for the pair to reverse course, as the certified results have been sent to the secretary of state in accordance with state rules. He lashed out at the Republicans over their requests.
“Do they understand how they are making us look as a body?” he said. “We have such an amazing and important role in the democratic process, and they’re turning it on its head.”
I am not an expert on Michigan law. I suspect that it would take a court order to rescind a certification, and in any case if the results were not certified on the county level, the state has the power to certify the results. We will see if this plays out on the state level as well.
This is very dangerous for our democracy, as it is an attempt to thwart the will of the voters through political pressure from the President. Even though it is extremely unlikely to work, it is profoundly antidemocratic and a violation of the rule of law. It’s inexcuasable.
Josh Gerstein for Politico:
President Donald Trump’s campaign has filed yet another version of its lawsuit over the election results in Pennsylvania, now contending that he should be named the victor in the presidential contest there or that the state legislature be given the authority to assign the state’s 20 electoral votes.
The third iteration of the suit also restores legal claims dropped in the second version that the campaign’s constitutional rights were violated because of allegedly inadequate access for observers during the processing of mail-in ballots.
The new complaint claims 1.5 million mail-in or absentee votes in seven Pennsylvania counties “should not have been counted” and that the disputed votes resulted “in returns indicating Biden won Pennsylvania.”
The new pleading also continues to pursue an unusual tack for Republicans: invoking international standards to assess the legitimacy of U.S. election procedures. Trump campaign lawyers also leveled bitter criticism at a Pennsylvania Supreme Court decision Tuesday that found, by a vote of 5-2, that access for election observers was adequate even if they could not see the details of individual ballots.
President Trump’s false accusations that voter fraud denied him re-election are causing escalating confrontations in swing states across the country, leading to threats of violence against officials in both parties and subverting even the most routine steps in the electoral process.
In Arizona on Wednesday, the Democratic secretary of state, Katie Hobbs, issued a statement lamenting the “consistent and systematic undermining of trust” in the elections and called on Republican officials to stop “perpetuating misinformation.” She described threats against her and her family in the aftermath of Joseph R. Biden Jr.’s victory over Mr. Trump in her state.
In Georgia, where Mr. Biden holds a narrow lead that is expected to stand through a recount concluding Wednesday night, Secretary of State Brad Raffensperger, a Republican, has said he, too, received menacing messages. He also said he felt pressured by Senator Lindsey Graham, a close Trump ally and the chairman of the Senate Judiciary Committee, to search for ways to disqualify votes.
In Pennsylvania, statehouse Republicans on Wednesday advanced a proposal to audit the state’s election results that cited “a litany of inconsistencies” — a move Democrats described as obstructionist and unnecessary given Mr. Trump’s failure to present any evidence in court of widespread fraud or other problems. Republicans in Wisconsin filed new lawsuits on Wednesday in the state’s two biggest counties, seeking a recount. Mr. Biden reclaimed both states after Mr. Trump won them in 2016….
About half of all Republicans believe President Donald Trump “rightfully won” the U.S. election but that it was stolen from him by widespread voter fraud that favored Democratic President-elect Joe Biden, according to a new Reuters/Ipsos opinion poll.
The Nov. 13-17 opinion poll showed that Trump’s open defiance of Biden’s victory in both the popular vote and Electoral College appears to be affecting the public’s confidence in American democracy, especially among Republicans.
Altogether, 73% of those polled agreed that Biden won the election while 5% thought Trump won. But when asked specifically whether Biden had “rightfully won,” Republicans showed they were suspicious about how Biden’s victory was obtained.
Fifty-two percent of Republicans said that Trump “rightfully won,” while only 29% said that Biden had rightfully won.
Tom Donohue — CEO of the U.S. Chamber of Commerce, and longtime confidant of Republican presidents — tells Axios that Joe Biden is president-elect, and President Trump “should not delay the transition a moment longer.”…
Business leaders are speaking with one voice:
- National Association of Manufacturers president and CEO Jay Timmons, and other NAM leaders, said the GSA should sign the letter opening transition resources to Biden: “Further, we call on the Trump administration to work cooperatively with President-elect Biden and his team.”
- JPMorgan Chase chairman and CEO Jamie Dimon told Andrew Ross Sorkin at the N.Y. Times’ Dealbook conference: “We need a peaceful transition. We had an election. We have a new president. You should support that whether you like it or not because it’s based on a system of faith and trust.”
- The Business Roundtable, representing top CEOs, on Nov. 7 congratulated “President-elect Biden, Vice President-elect Harris.”
President Trump’s frantic post-election challenges are having the opposite effect of what he intended: He’s documenting his demise through a series of court fights and recounts showing Joe Biden’s victory to be all the more obvious and unassailable.
Why it matters: The president’s push to overturn the election results is dispelling the cloud of corruption he alleged by forcing states to create a verified — and legally binding — accounting of his election loss.
- “Each loss further cements Biden’s win,” says election law expert Richard Hasen.
- “History shows that any leader who constructs a major myth, that is later shown to be false, will eventually fall,” says Harvard science historian and “Merchants of Doubt” author Naomi Oreskes. “The risk is that he takes his country down with him.”
Zach Montellaro for Politico.
The 2020 ABA Conference on Administrative Law started today. Lots of great panels and speakers. I’m on a panel this Thursday at 1.00 pm with the title above. Here’s the lineup —
Speakers
• Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, George Washington University School of Law, Washington, DC
• Anne Joseph O’Connell, Adelbert H. Sweet Professor of Law, Stanford University School of Law, Stanford, CA
• William A. Galston, Ezra K. Zilkha Chair, Governance Studies, The Brookings Institution, Washington, DC
• Richard H. Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law, New York, NY
Moderator
• Daniel M. Flores, is Senior Counsel–Republican, House Committee on Oversight and Reform. Washington, DC
NJ:
U.S. Sen. Pat Toomey on Wednesday put some distance between himself and President Donald Trump’s efforts to throw out hundreds of thousands of votes cast in Philadelphia and Pittsburgh, trying to flip a state carried by Joe Biden.
Asked at the U.S. Capitol about the legal arguments by Trump lawyer Rudy Giuliani, Toomey, R-Pa, said simply: “Let me just say, I don’t think they have a strong case.”
The suit before U.S. District Judge Matthew W. Brann seeks to invalidate around 700,000 votes on the grounds that Republican poll watchers could not watch them being counted. But the Trump campaign earlier dropped those charges from its court case.
From Jonathan Rauch:
Unfortunately, a more sinister interpretation better fits the facts. What Trump and his supporters are up to should be thought of not as a litigation campaign that is likely to fail, but as an information-warfare campaign that is likely to succeed—and, indeed, is succeeding already. More specifically, they are employing a tactic called “the firehose of falsehood.” This information-warfare technique, according to researchers at the RAND Corporation, is marked by “high numbers of channels and messages and a shameless willingness to disseminate partial truths or outright fictions.”…
Unlike more traditional forms of propaganda, the firehose of falsehood does not aim primarily at persuading the public of something that is false (although this is a welcome result). Rather, it floods the information environment with so many lies, half-truths and theories that the public becomes disoriented, confused and distrustful of everyone.
While the bulk of firehose claims are false or misleading, even mutually contradictory, a skilled propagandist may salt the mix with statements that are partly valid, lending apparent plausibility to the rest. The bewildering panoply of true and false, rumor and conspiracy, lawsuits and countersuits, all work toward the main objectives: to undermine legitimate authorities, polarize and fracture society, and open the door to cynicism and demagoguery.
Trump has often been dismissed as a would-be authoritarian whose saving grace is his incompetence. That may be true in some respects, but at disinformation he is ambitious and skilled. As of Election Day, he had made around 25,000 false and misleading claims. Amid the hailstorm of confusion and contradiction, it was little wonder that Sen. John Kennedy (R-Louisiana) parroted Kremlin disinformation about whether Russian operatives had hacked and released Democratic emails before the 2016 election. “I don’t know, nor do you, nor do any of us,” he said.
I don’t know, nor do you, nor do any of us: That is the outcome Trump and his minions are playing for. Their latest campaign is the most audacious. It began months ago, with Trump’s drumbeat of false attacks on mail voting, quickly echoed by conservative media. That narrative of impending fraud set up the current campaign. Whereas most ordinary Americans view the courts, politics and the media as separate spheres, Trump understands them all as information battlegrounds—avenues of influence to the central goal of casting doubt.
Trump’s strategy is sophisticated, even if his style is not. As a profligate and frequently unsuccessful litigant, he almost certainly knows that his lawsuits will not reverse the election. To succeed, however, he must merely reach two attainable goals: convince Republicans that the election was not free and fair (as 70 percent of them already believe, according to a recent Politico/Morning Consult poll); and convince much of the rest of the public that the election result is in doubt, and can never be known for sure. Those outcomes will frustrate and distract Democrats, outrage and mobilize Republicans, and—most important from Trump’s point of view—position him to remain agitator-in-chief after he leaves office.
In light of the post-election debates raging in the Democratic Party between moderates and progressives over how to position the party for future elections, I thought it was worth re-upping this Washington Post essay that Jonathan Rodden and I wrote in the run-up to the 2018 midterms. The issues remain the same:
Democrats have engaged in a passionate debate leading into the midterms on Nov 6. “Progressives” argue that the path to victory this year and beyond lies in motivating their youthful urban base by moving the party to the left. “Pragmatic” centrists, on the other hand, argue that victory requires ideological moderation that will attract independents.
Paradoxically, both sides might be right, which is why this tension is unavoidable and likely to endure. To understand this, we must grasp how electoral geography shapes politics. President Trump won 230 congressional districts to Hillary Clinton’s 205, even though she outpolled him by more than 3 million votes nationwide. This reflects, in part, the fact that progressive voters are increasingly concentrated in the areas that make up urban congressional and state legislative districts, while moderates and conservatives are more evenly dispersed in exurban and rural districts.
Democrats have engaged in a passionate debate leading into the midterms on Nov 6. “Progressives” argue that the path to victory this year and beyond lies in motivating their youthful urban base by moving the party to the left. “Pragmatic” centrists, on the other hand, argue that victory requires ideological moderation that will attract independents.
Paradoxically, both sides might be right, which is why this tension is unavoidable and likely to endure. To understand this, we must grasp how electoral geography shapes politics. President Trump won 230 congressional districts to Hillary Clinton’s 205, even though she outpolled him by more than 3 million votes nationwide. This reflects, in part, the fact that progressive voters are increasingly concentrated in the areas that make up urban congressional and state legislative districts, while moderates and conservatives are more evenly dispersed in exurban and rural districts….
To win control of Congress and state legislatures, Democrats mustcapture relatively conservative districts that support Republicans in presidential elections. Structurally, this is nothing new. Democrats have been relatively concentrated in urban districts since the New Deal, and for decades, their geography made it necessary for them to field congressional candidates who could win on “Republican” turf in the suburbs and countryside..
Whatever the outcome this fall, the Democrats’ basic geography problem is likely to endure. To maintain control of the House or state legislatures beyond the isolated wave election, self-styled exurban and rural Democrats will feel the pressure to craft local brands that distance themselves from their party’s liberal reputation, even if that reputation serves the party well in winning the national or statewide popular vote.
Political geography — not just ideological conflict on its own — thus makes it likely that tensions between the progressive and centrist wings of the Democratic Party will endure.
Lachlan Markay for the Daily Beast:
The good news is that the nation’s top campaign finance watchdog may soon be functional again. The bad news is that its current chairman has gone off the rails.
Trey Trainor may not be a household name. But as head of the Federal Election Commission, he has oversight of the campaign finance system that underpins federal elections. And in recent days, he’s been floating baseless election fraud conspiracy theories sourced entirely to a Trump attorney who believes the Fed is out to tank the American economy in order to enrich George Soros.
“I do believe that there is voter fraud taking place” in key states in the 2020 presidential election, Trainor told the conservative outlet Newsmax last week. The allegations were quickly seized upon by the president’s allies, including his son Donald Trump Jr., in their efforts to overturn the results of an election that experts both in and out of the federal government have said was remarkably secure and reliable.
Such proclamations carry a bit of extra weight when coming from the chair of the FEC. But Trainor’s sole source for it appears to be the word of Sidney Powell, a right-wing attorney who’s representing the Trump campaign in its efforts to block the certification of President-elect Joe Biden’s election victory.
“If she says there is rampant voter fraud… I believe her,” Trainor wrote of Powell, who has alleged that U.S. monetary policy is in hock to Soros and amplified“QAnon” conspiracy theorists.
Campaign finance experts recoiled at Trainor’s apparent embrace of the dubious allegations. “My biggest concern with Commissioner Trainor is his partisanship, and to the extent that overlaps with the conspiracy theorizing about election fraud, that’s a concern,” said Paul Seamus Ryan, the vice president of litigation with the group Common Cause, in an interview on Tuesday.
But the comments were just the latest in a recent shift at the FEC, spearheaded by both Republican and Democratic commissioners, to expand its role to some degree beyond the commission’s traditional campaign finance enforcement mandate. Fueled by concerns over foreign election interference in 2016 and spurious voter fraud charges this year, the nation’s chief political money enforcer appears to be eyeing an expanded policy purview, even as the commission he served on has been prevented by internal dysfunction and a critical staff shortage from carrying out its most basic functions.
President Trump’s campaign said it would request a recount of votes in Wisconsin’s two largest and most Democratic counties, the latest effort to reverse the result of an election Mr. Trump lost to President-elect Joseph R. Biden Jr.
The Trump campaign said it would file a petition with the Wisconsin Elections Commission to recount results in Milwaukee County and Dane County, which includes Madison and the flagship campus of the University of Wisconsin. The commission on Wednesday morning said in a tweet that it had received a $3 million wire transfer from the campaign but no petition.
State law requires a recount petition to be filed by 6 p.m. Eastern time Wednesday to prompt a recount.
The commission on Monday said it would cost $7.9 million to conduct a statewide recount of the presidential contest, which Mr. Biden won by 20,608 votes out of 3.2 million cast. The estimate for recounting the race in Milwaukee County was $2.04 million, and $740,808 for Dane County.
A statewide recount following the 2016 election added 131 votes to Mr. Trump’s margin of victory over Hillary Clinton.
NYT:
Mayor Mike Duggan on Wednesday accused President Trump’s allies in Michigan’s most populous county of racism after they threatened to block certification of the election over slight discrepancies in majority-Black precincts — while ignoring similar problems in heavily white areas.
On Tuesday night, Republican election board members in Wayne County, which contains Detroit and its inner suburbs, refused to certify the county’s election results in a nakedly partisan effort to hold up President-elect Joseph R. Biden Jr.’s victory over Mr. Trump — only to reverse themselves after outcry from state officials and Detroit residents who accused them of trying to steal their votes and criticized the move as racist.
“You could see the racism in the behavior last night,” Mr. Duggan said at a news conference Wednesday. “American democracy cracked last night, but it didn’t break. But we are seeing a real threat to everything we believe in.”
Rev. Wendell Anthony, the head of Detroit’s NAACP chapter, said the Trump campaign’s attempts to discredit the election in cities with large Black populations like Detroit, Philadelphia and Atlanta is part of a racist pattern intended to stoke divisions and undermine core democratic institutions.
Hasen on Costa on Giuiliani:
Let me spell this out a bit more. The rules under the Electoral Count Act are complicated and some are not clear, but this much is clear: you don’t go to a contingent election (where each state delegation gets only one vote) unless no candidate gets a majority. That won’t happen if a state sends in two slates of electors: one through the normal process as certified by the governor and one from some rogue state legislature. In that circumstance, the ECA provides that the governor’s slate of electors prevails. In Michigan, Pennsylvania, and Wisconsin, there are Democratic governors. Those governors would send in slates that would prevail.
Forget Russia’s interference in the 2016 election. Or Trump’s impeachment for asking Ukraine to dig up dirt on Joe Biden.
Arguably the biggest political scandal we’ve ever seen in this country is playing right before our eyes: President Trump and his allies are trying to reverse the election results of a contest he lost.
It doesn’t look like the scheme is going to work. The Wayne County (Detroit) Board of Canvassers last night certified its election results after its two Republican members initially withheld support. (Biden won Wayne County, 68 percent to 31 percent, and the state of Michigan by 148,000 votes.)
But being unsuccessful doesn’t erase the magnitude of the scandal — or the fact that the president of the United States has cheered it on every step of the way.
Consider the last 24 hours:
- The two Republican members of Wayne County’s canvassing board voted against certifying its election results before reversing course, and Trump praised the action: “Wow! Michigan just refused to certify the election results! Having courage is a beautiful thing. The USA stands proud!”
- In Nevada — a state Trump lost by 2.4 percentage points — the president’s campaign team filed a lawsuit asking a judge to either declare Trump the winner or to reject the state’s election results.
- In Pennsylvania — which Biden won by more than 82,000 votes — Trump lawyer Rudy Giuliani was in court asking a judge to overturn the state’s results. (“At bottom, you’re asking this court to invalidate some 6.8 million votes thereby disenfranchising every single voter in the commonwealth,” the judge said.)
- And to top it off, the president on Tuesday fired the federal government’s head of cybersecurity, who had debunked many of the conspiracy theories that Trump’s team had been promoting.
Bottom line: Trump’s efforts to overturn the election have stumbled and gained no significant traction yet. But it’s still disturbing to watch, especially with so many elected Republicans staying silent.
And it provides a road map for someone else to do it better next time.
That said, we’re going to find out at 6:00 p.m. ET if Trump is going to put his money where his mouth is — that is, pay the required $7.9 million for Wisconsin’s recount by today’s state deadline.
Things did not go well Tuesday for the Trump campaign’s effort to stop certification of the Pennsylvania vote count — which has Joe Biden ahead by more than 73,000 votes.
At almost the same time the president’s lawyer, Rudy Giuliani, was in federal court in Williamsport, Pa., complaining that Republican observers were illegally denied access to vote counting in Philadelphia and other Democratic areas, the state Supreme Court in Harrisburg concluded otherwise. By a 5-2 vote, it ruled that Philadelphia election officials had acted properly in their handling of the observation process.
The Trump campaign had argued that GOP representatives were kept too far away to see whether there were any irregularities, but the court said they were able to view election workers “performing their duties,” as required.
It was a major loss for the president and his campaign’s flailing effort to overturn the election results. Republicans have filed suits in several states seeking to invalidate thousands of votes, but have lost almost every case so far….
The president’s lawyer also alleged, without providing any evidence, that voting in Pennsylvania was riddled with fraud. He said it was “not an isolated case” either, but part of “widespread national voter fraud” involving other jurisdictions, including Detroit and Milwaukee. However, Giuliani later admitted to the judge that the Pennsylvania lawsuit was “not a fraud case.”
The judge gave the parties several days to file additional briefs and motions before he makes a decision on whether to dismiss the case.
In 2016, Senator Lindsey Graham of South Carolina praised the integrity of the nation’s elections system, criticizing claims by Donald J. Trump that the vote was “rigged.”
“Like most Americans, I have confidence in our democracy and our election system,” Mr. Graham said in a statement on Twitter. “If he loses, it will not be because the system is ‘rigged’ but because he failed as a candidate.”
What a difference four years makes.
Mr. Graham, who has transformed during that time to become one of Mr. Trump’s most loyal allies, now seems determined to reverse the election’s outcome on the president’s behalf. On Friday, he phoned Brad Raffensperger, the secretary of state of Georgia and a fellow Republican, wondering about the possibility of a slight tinkering with the state’s elections outcome.
What if, Mr. Graham suggested on the call, according to Mr. Raffensperger, he had the power to toss out all of the mail-in votes from counties with high rates of questionable signatures on ballots?
In an interview with The Washington Post, Mr. Raffensperger said he was stunned that Mr. Graham had appeared to suggest that he find a way to toss legally cast ballots.
“It sure looked like he was wanting to go down that road,” Mr. Raffensperger said of the call from Mr. Graham, the chairman of the powerful Senate Judiciary Committee.
Mr. Graham seems bent on making every attempt to engineer a second term for Mr. Trump, despite President-elect Joseph R. Biden Jr.’s clear victory. The senator has suggested that this year’s vote represents the Republican Party’s last gasp, unless something is done to reverse the current state of election operations — the same system he praised in 2016.
“If Republicans don’t challenge and change the U.S. election system, there will never be another Republican president elected again,” Mr. Graham said on Sunday on Fox News.
The phone call to Mr. Raffensperger was one in a string of episodes in which Mr. Graham, who won his own re-election bid this month, has tried to cast doubt on the presidential election’s outcome, demanding that Mr. Trump not concede the race to Mr. Biden despite the Democrat’s decisive Electoral College victory — 306 to 232 electoral votes.
Josh Gerstein for Politico:
Giuliani’s presence amped up the drama of the hearing and briefly displaced the predominant narrative that the president’s legal challenges have thus far been almost completely unsuccessful. However, it was less clear whether his presence would bolster the campaign’s legal record.
When Brann asked technical legal questions about whether “strict scrutiny” or “rational basis” tests applied to the case, Giuliani struggled to answer. At times, his arguments sounded more like legal commentary from a TV talk show than what lawyers typically argue about in court.
Giuliani referred to alleged fraud or irregularities in Minnesota, Wisconsin and Nevada, although the relevance of those to the pending suit in Pennsylvania was unclear. He also struggled to explain how Boockvar was legally responsible for the treatment of observers in some counties or how various counties handled flawed ballots. Giuliani eventually said she was a proper defendant because nonbinding guidance she issued to county election officials caused “mass confusion.”
Brann’s first question after initial presentations from lawyers on various sides of the case suggested the Trump campaign faces long odds in its question to block certification of the statewide results based on alleged exclusion of observers in some Pennsylvania cities.
“At bottom, you’re asking this court to invalidate more than 6.8 million votes, thereby disenfranchising every single voter in the commonwealth. Can you tell me how this result can possibly be justified?” the judge asked.
Although the suit does ask to block certification of the statewide results, Giuliani focused on the 680,000 votes he said were counted in Philadelphia and Pittsburgh while Republican observers were excluded or were too far away to see the ballots.
“The remedy … is draconian because the conduct was egregious,” Giuliani said. “As far as we’re concerned, Your Honor, those ballots could have been for Mickey Mouse.”
Despite opening his remarks with sweeping claims of fraud, Giuliani acknowledged later in the session that the complaint in the case didn’t directly allege fraud.
Another ominous sign for the Trump campaign: Brann canceled an evidentiary hearing he had set for Thursday where the Trump lawyers could have called witnesses to complain about the access issues.
A lawyer for several counties that were sued in the case, Mark Aronchick, warned that such a hearing could become a “circus.” He was evidently disdainful of Giuliani’s arguments, particularly the call to throw out nearly 700,000 ballots.
“The idea that you’re being asked to do that, I don’t use this word very much … it is disgraceful,” Aronchick said.
The prospect of Republican-led hearings in Harrisburg this month to scrutinize the conduct of the election appears to have diminished, with key officials unavailable because of their involvement in lawsuits and the 2019-20 session scheduled to end Nov. 30.
York County Republican Rep. Seth Grove, interim chairperson of the state House committee identified last week as a possible vehicle for hearings, said Monday they probably would not happen this year.
But, he said, election law changes were a “must” for the next legislation session, which starts in January. A spokeswoman for Senate Majority Leader Jake Corman, Jennifer Kocher, also said a look back at the election might produce calls for changes.
Democrats, meanwhile, view the election as well-run.
The Wayne County Board of Canvassers abruptly changed course Tuesday night and certified the results of the Nov. 3 election after initially deadlocking 2-2 along party lines, which could have delayed the state process for authorizing results.
The deadlock decision was lauded by Republicans but decried by Democrats. During a public comment session, the vote was described as a targeted attack on majority-Black Detroit.
The change in course was approved by the two Republican and two Democratic canvassers with the demand that the Secretary of State’s office conduct an audit of unbalanced absentee counting board results.
AJC:
Georgia election officials said Tuesday they no longer intend to make the results of the state’s manual recount the official tally in the presidential race, with a couple of exceptions.
The decision leaves little chance for election results to change much after the recount concludes Wednesday. Joe Biden led President Donald Trump by 14,000 votes, according to unofficial results.
But some votes that weren’t originally counted will be added to the state’s totals. Election officials in Floyd and Fayette counties discovered ballots they hadn’t previously been tabulated, and those votes will be included in final counts. After accounting for those ballots, Biden’s lead will shrink to about 13,000 votes.
The change in how the recount is handled came after lawyers for the secretary of state’s office reviewed Georgia law and concluded that the new hand count shouldn’t replace the original machine count of scanned ballots, said Gabriel Sterling, the state’s voting system manager.
MORE:
Election workers discovered almost 2,800 previously uncounted ballots Tuesday, the second time this week that Georgia’s recount revealed that election officials in Republican-leaning counties had missed some ballots.
The finding, which came as Georgia’s manual recount neared completion Wednesday, narrowed Joe Biden’s lead over Donald Trump to 12,929, according to the secretary of state’s office.
The missing votes weren’t entirely unexpected in Fayette and Floyd counties. Both counties had reported more ballots cast than votes counted, indicating that they might have overlooked some ballots. There didn’t appear to be any other counties with vote-counting discrepancies, according to state election data.
President Donald Trump’s reelection campaign has filed a lawsuit contesting the results of the state’s presidential election while claiming without direct evidence that the identified irregularities will be enough to overturn Joe Biden’s victory in the state.
At a press conference Tuesday outside the state Republican Party headquarters in Las Vegas, representatives from the Trump campaign — including former Attorney General Adam Laxalt, campaign attorney Jesse Binnall and American Conservative Union chair Matt Schlapp — said they had identified multiple examples of irregularities and voter fraud in the state’s 2020 general election that they allege in totality prove Trump won the election.
The lawsuit, which was filed in Carson City District Court Tuesday afternoon, is the latest legal challenge filed by the Trump campaign and Republican groups over Nevada and Clark County’s general election processes and procedures. Final vote tallies released over the weekend and certified by counties on Monday gave former Vice President Joe Biden a 33,596 vote, or 2.39 percentage point, lead over Trump in the state.
But representatives from the Trump campaign say they’ve uncovered enough evidence of questionable votes to call into doubt those results and “bridge the gap” between Trump and Biden in the state.
“We’re quite confident in the fact that when the law and the facts are clearly adjudicated in this matter, that it will be very clear that once all the voting happened, once everything occurred, the results were unreliable because of the irregularities and the fraud” Binnall said.
Dan Kulin, a spokesman for Clark County, said in an emailed statement that the county has not yet seen the lawsuit but that it “sounds like they are repeating allegations the courts have already rejected, misstating and misrepresenting evidence provided in those proceedings, and parroting erroneous allegations made by partisans without first-hand knowledge of the facts.”
The two Republican members of the Wayne County Board of Canvassers cast an unprecedented vote Tuesday against certifying the county’s November election results for the county’s 43 jurisdictions, including Detroit, Michigan’s largest voting jurisdiction.
Monica Palmer, the Republican chair of the committee said: “I believe that we do not have complete and accurate information on those poll books,” referring to jurisdictions, including Detroit, that recorded unexplained discrepancies between the number of absentee ballots recorded as cast and the number of absentee ballots counted.
Jonathan Kinloch, the Democratic vice chair of the board, said: “Most of this is human error. … It’s not based on fraud.”
All four members of the board unanimously supported the certification of the August primary election, which also saw unexplained discrepancies….
Statement of Michigan SOS Benson:
President Trump on Tuesday fired a top Department of Homeland Security official who led the agency’s efforts to help secure the election and was vocal about tamping down unfounded claims of ballot fraud.
In a tweet, Trump fired Christopher Krebs, who headed the Cybersecurity and Infrastructure Security Agency at DHS, and led successful efforts to help state and local election offices protect their systems and to rebut misinformation.
Earlier in the day, Krebs in a tweet refuted allegations that election systems were manipulated, saying that “59 election security experts all agree, ‘in every case of which we are aware, these claims either have been unsubstantiated or are technically incoherent.’”
Krebs’ statement amounted to a debunking of Trump’s central claim that the November election was stolen.
Conservative groups have also started phone and letter-writing campaigns in an attempt to persuade legislative Republicans to decide the election for Trump.
“That’s not going to happen,” Shirkey, R-Clarklake, said in a wide-ranging interview with Bridge Michigan. He noted state law awards electors to the winner of the state’s popular vote. And Biden won the state by more than 146,000 votes, according to unofficial results.
“We are going to follow the law and follow the process,” he said. “I do believe there’s reason to go slow and deliberate as we evaluate the allegations that have been raised.”
Shirkey spoke with Bridge hours before Tuesday’s deadline for Michigan’s 83 county canvassing boards statewide to certify results, a key step before the Electoral College formally selects the president on Dec. 14.
From the majority opinion:
In sum, we conclude the Board did not act contrary to law in fashioning its regulations governing the positioning of candidate representatives during the precanvassing and canvassing process, as the Election Code does not specify minimum distance parameters for the location of such representatives. Critically, we find the Board’s regulations as applied herein were reasonable in that they allowed candidate representatives to observe the Board conducting its activities as prescribed under the Election Code. Accordingly, we determine the Commonwealth Court’s order was erroneous. Thus, we vacate that order, and reinstate the trial court’s order.
From the principal dissent arguing mootness:
Finally, short of demonstrated fraud, the notion that presumptively valid ballots cast by the Pennsylvania electorate would be disregarded based on isolated procedural irregularities that have been redressed — thus disenfranchising potentially thousands of voters — is misguided. Accordingly, to the degree that there is a concern with protecting or legitimizing the will of the Philadelphians who cast their votes while candidate representatives were unnecessarily restrained at the Convention Center, I fail to see that there is any real issue.
I have already written how the Trump campaign sought a last minute substitution of lawyers and then a delay of the preliminary injunction hearing in Trump’s Pennsylvania lawsuit seeking to delay certification of the vote.
Well now Rudy Giuliani has asked to make an appearance in the case for the Trump campaign. His application says he’s a member of the DC Bar in good standing (seeking pro hac vice status). But he’s suspended for not paying his bar fees.
This lawyering is a joke.
The legal push by President Donald Trump to contest the results of Pennsylvania’s Nov. 3 election is on its last legs after a devastating week that delivered a string of courtroom losses and saw the sudden departure of the law firm leading up the fight.
While Trump’s campaign continues to pursue legal challenges, there was no active case left with enough ballots in question to reverse Joe Biden’s 69,000-vote advantage in the state as of Monday afternoon.
Trump campaign lawyers now say their goal isn’t to overturn Biden’s lead but to whittle his 1.01-point lead down to 0.5 points and trigger an automatic recount.
And this week is likely to prove decisive in the one case on which the campaign has pinned its remaining hopes — a suit seeking a court order barring Pennsylvania from certifying its final vote tally.
It’s worth noting again that despite the outsized rhetoric from the president and his allies about widespread and systemic voter fraud, none of the suits his campaign has filed so far has contained even one allegation — let alone evidence — of a single vote being deliberately cast illegally. What’s more, campaign lawyers, when pressed by Pennsylvania judges in court, have consistently acknowledged that they are not alleging voter fraud but are instead seeking to disqualify ballots submitted by lawful voters based on legal technicalities.
Interviews with current and former Real Clear staff members, along with a review of its coverage and tax filings, point to a shift to the right within the organization in late 2017, when the bulk of its journalists who were responsible for straight-news reporting on Capitol Hill, the White House and national politics were suddenly laid off. Though the staff always knew the website’s founders were conservative and harbored strong views about liberal media bias, several said they never felt any pressure from above to slant their stories.
“One day we were all called in and told it was over,” said Alexis Simendinger, who was the White House correspondent for Real Clear Politics. “It was a very surprising thing.”
They were never given much of an explanation why, the former employees said. But they were surprised to learn who was replacing them in some cases: writers who had worked in the conservative movement or for the Republican Party. One hire was the former chair of the Manhattan Republican Party and was married to a senior Trump administration official.
Top Real Clear executives also developed business ties with a hard-right conservative outlet, The Federalist, that is frequently promoted on the Real Clear flagship website. Public records and interviews show that The Federalist, whose funding sources have been largely secret, draws from the same pool of donor money as Real Clear. In their statement, Mr. McIntyre and Mr. Bevan emphasized the website’s independence but declined to address specific questions about their donors.
Given the challenges of turning a profit in digital media, political publications often have a hard time existing on advertising revenue alone. Some right-of-center outlets like Real Clear and National Review, along with left-leaning ones like Media Matters for America and Mother Jones, fund part of their operations through foundations that can accept anonymous tax-deductible contributions.
Publishers and media scholars said that while these gifts provide a measure of financial stability, they can also cost an outlet its editorial independence — or the perception of independence. And accepting money from ideologically motivated donors, especially ones who wish to keep their giving private, opens the door to a host of ethical questions….
From 2016 to 2017, donations to the Real Clear Foundation more than quadrupled to $1.7 million, with nearly all of that coming from two entities that conservatives use to shield their giving from public disclosure requirements, Donors Trust and Donors Capital Fund. In 2018, the Real Clear Foundation had its best year yet, reporting more than $3 million in donations. One donor whose identity is disclosed on tax filings is Andrew Puzder, who was briefly Mr. Trump’s nominee for labor secretary and writes opinion pieces for Real Clear.
Public records from those years and interviews show how the leadership and donor base of Real Clear and The Federalist overlapped.
One of The Federalist’s major financial backers is the conservative, pro-Trump businessman Richard Uihlein, according to two people with knowledge of the website’s finances. Mr. Uihlein and his wife, Elizabeth, who runs their family’s multibillion-dollar packaging business, have been known to steer money toward hard-right candidates that many other Republicans have avoided, like Roy S. Moore, the former Alabama judge whose Senate campaign unraveled after women accused him of pursuing them and fondling them when he was in his 30s and they were teenagers.
Ms. Uihlein was also known for her outspokenness against public health lockdowns and revealed last week that she and her husband had contracted the coronavirus.
Together the couple have become one of the biggest sources of investment in conservative politics in recent years. They have given $250,000 to the Real Clear Foundation through their family nonprofit, tax records from 2017 and 2018 show.
The Federalist’s funding remains opaque, but its ties to Real Clear are detailed in public documents. Two top executives at Real Clear Politics were named in disclosures filed by Federalist entities. Mr. McIntyre, the Real Clear co-founder, is listed as a director of The Federalist’s umbrella corporation on a filing with the Securities and Exchange Commission that also bears his signature.
The Real Clear publisher David DesRosiers was listed as a director with The Federalist’s nonprofit foundation. And as reported by BuzzFeed and others, The Federalist has used the same address that Real Clear Politics uses as the location of its Chicago office.
Governing speaks to Amber McReynolds.
Ken Doyle for Bloomberg Government:
The Federal Election Commission is set to be revived after being sidelined during the most expensive election in U.S. history.
Senate Rules and Administration Committee Chairman Roy Blunt (R-Mo.) scheduled a confirmation hearing for Wednesday for Democrat Shana Broussard and Republicans Sean Cooksey and Allen Dickerson. President Donald Trump nominated them to fill longstanding vacancies to the commission in charge of campaign finance enforcement.
The panel hopes to advance their nominations to the Senate floor, where they could be voted on by the end of November.
The FEC can then get started on a backlog of about 400 enforcement cases that, according to commission officials, include complaints filed in this year’s election, as well as unresolved matters from the the previous two federal elections and some from even earlier.
But some campaign finance experts doubt that the restoration of a voting quorum — which the FEC has lacked for all but a few weeks since September 2019 — will end the history of gridlock on the six-member panel, which is equally divided between the parties and requires the approval of four members to take any enforcement action.
Details for the virtual webinar:
Election Law at Ohio State is honored to host a conversation among nationally-recognized election law scholars as they assess the election-related lawsuits, the certification of results in the states, and the next steps in the Electoral College process. We invite you to listen in as they offer their perspectives on where we are and where we might be headed.
THURSDAY, NOVEMBER 19
2:30 – 3:30pm (ET)
REGISTER HERE
HOST: Edward B. Foley | Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law, Moritz College of Law, The Ohio State University
MODERATOR: Steven F. Huefner | C. William O’Neill Professor in Law and Judicial Administration; Deputy Director, Election Law, Moritz College of Law, The Ohio State University
INVITED PANELISTS:
Guy-Uriel Charles | Edward and Ellen Schwarzman Professor of Law, Co-director of the Duke Law Center on Law, Race and Politics, Duke Law
Joshua A. Douglas | Ashland, Inc-Spears Distinguished Research Professor of Law, Rosenberg College of Law, University of Kentucky
Rebecca Green | Professor of the Practice of Law, Kelly Professor of Excellence in Teaching, Co-Director of the Election Law Program, William & Mary Law School
Richard L. Hasen | Chancellor’s Professor of Law and Political Science, UC Irvine School of Law
Justin Levitt | Associate Dean for Research, Professor of Law, Loyola Law School
Lisa Manheim | Charles I. Stone Associate Professor of Law, University of Washington School of Law
Michael T. Morley | Assistant Professor, Florida State University College of Law
Derek T. Muller | Professor of Law, University of Iowa College of Law
Nathaniel Persily | James B. McClatchy Professor of Law at Stanford Law School
Richard H. Pildes | Sudler Family Professor of Constitutional Law, New York University School of Law
Charles Stewart III | Kenan Sahin Distinguished Professor of Political Science, MIT; Co-director, Caltech/MIT Voting Technology Project; Director, MIT Election Data and Science Lab
Franita Tolson | Vice Dean for Faculty and Academic Affairs, and Professor of Law, USC Gould School of Law
John Kruzel in The Hill.
I missed this one, from Laurie Roberts at the Arizona Republic
Yet another Arizona congressman has completely lost it over the defeat of President Donald Trump.
It’s expected and accepted that Rep. Paul Gosar lives in the land where conspiracies abound. Now Rep. Andy Biggs has careened right off the rails and over the edge….
On Tuesday, Biggs suggested that the entire election be nullified, leaving it to … wait for it … Congress to appoint a president.
Never mind that there has been no evidence of any widespread fraud.
“Well, you’re talking about fraud, pure and simple,” Biggs said, during a Tuesday appearance on The Charlie Kirk Show. “We’re talking about Pennsylvania is an utter disaster, and really your immediate remedy is to basically nullify Pennsylvania’s election.
“So Pennsylvania would have to decide: are we going to revote? And I don’t think there’s time to revote. And if you can’t revote, then you can’t seat their electors. And if you can’t see their electors, you can’t seat anybody’s. And then you’re going to move to the Congress.”
The labels Facebook has been putting on false election posts from President Donald Trump have failed to slow their spread across the platform, according to internal data seen by BuzzFeed News.
In the aftermath of the 2020 US presidential election, Trump has repeatedly spread false information questioning President-elect Joe Biden’s victory — and been rewarded with massive engagement on Facebook. The company has attempted to temper this by adding labels to the false claims directing people to accurate information about the election and its results.
But this has done little to prevent Trump’s false claims from going viral on Facebook, according to discussions on internal company discussion boards. After an employee asked last week whether Facebook has any data about the effectiveness of the labels, a data scientist revealed that the labels — referred to as “informs” internally — do very little to reduce them from being shared.
”We have evidence that applying these informs to posts decreases their reshares by ~8%,” the data scientists said. “However given that Trump has SO many shares on any given post, the decrease is not going to change shares by orders of magnitude.”
The data scientist noted that adding the labels was not expected to reduce the spread of false content. Instead, they are used “to provide factual information in context to the post.”
“Ahead of this election we developed informational labels, which we applied to candidate posts with a goal of connecting people with reliable sources about the election,” Facebook spokesperson Liz Bourgeois said in a statement, adding that labels were “just one piece of our larger election integrity efforts.”
CNN:
When President Donald Trump learned at the end of last week that his lawyers were dropping their lawsuit seeking a review of ballots in Arizona, the news caught him by surprise.
Summoning members of his team to the Oval Office, where he has been spending afternoons and evenings lately when not in the adjoining dining room watching television, Trump demanded to know why it appeared he was giving up a battle he fully intends to continue waging.
Even as his legal pathway to challenging Joe Biden’s electoral victory becomes thinner by the day — and as some of his senior-most aides begin signaling publicly that Biden will take office in January — Trump has shown little indication he plans to back off his false claim that he won the election.
Instead of an actual attempt to locate more votes or even to reverse the election results, Trump’s legal efforts appear designed instead to seed conspiracy theories among his conservative supporters, raise additional money, preserve power over the Republican Party and cast a pall of illegitimacy over Biden’s tenure — the same shadow Trump has long complained darkened his own time in office.
Whether any of those outcomes is his express goal remains unclear. Many around him believe a dejected President is simply making an elaborate attempt at processing his trauma rather than executing a master plan. Asked last week how long his efforts might last, Trump suggested “two weeks, three weeks” — though few believe he will ever acknowledge outright that he lost the election to Biden…
The split came to a head during the Oval Office huddle, a session people briefed on the matter described as contentious even by Trump administration standards. At one point, Giuliani — who was patched in on speaker phone — called the Trump campaign lawyers liars for telling the President his odds of changing the outcome of the election were slim.
On the call, Justin Clark, the President’s deputy campaign manager, fired back. “F***ing asshole,” Clark labeled the former New York City mayor, whose involvement in Trump’s post-election legal efforts has caused anger and exasperation among other advisers.
President Trump began his third straight week of angry defiance of the election results, brooding behind the scenes about the state of his campaign’s legal challenges and of Georgia’s hand recount while refusing the pleas of some advisers to commit to a peaceful transfer of power.
Despite mounting legal losses in courts and a retreat by his attorneys in a federal case filed against Pennsylvania election officials, Trump dug in on his false claim that he “won” the election.
The president also assailed Georgia for what he described on Twitter as a “Fake” and “MEANINGLESS” recount in that state, which President-elect Joe Biden leads by 14,205 votes and has been projected to win. Trump officials seized late Monday on the discovery of about 2,600 eligible votes in heavily Republican Floyd County that were not included in initial tallies, although they would not be enough to change the outcome statewide.
Georgia’s Republican secretary of state, Brad Raffensperger, said in an interview Monday that he has come under increasing pressure from fellow Republicans to exclude ballots in an effort to reverse Trump’s narrow loss and that the president’s misinformation campaign has gotten so out of hand that he has received death threats.
Trump’s campaign has begun winding down its operations, with employment contracts for a number of aides expiring on Sunday. The president, frustrated that his campaign lawyers were not appearing more frequently on television to amplify his baseless claim that he was the real election winner, has elevated attorneys Rudolph W. Giuliani and Jenna Ellis to run his legal and public-relations efforts to overturn the results.
President Donald Trump’s campaign would have to pay nearly $8 million to start a recount in Wisconsin, a state he narrowly lost two weeks ago.
Trump will have to decide by Wednesday whether to carry through with the recount he has promised to pursue.
If his campaign pays the $7.9 million cost up front, the recount will begin as soon as Thursday and be complete by Dec. 1, according to the state Elections Commission.
Trump has been furiously fundraising for the Wisconsin recount and legal challenges in other states to try to overturn Democrat Joe Biden’s victory. If he doesn’t go ahead with the Wisconsin recount, he can use the money he’s raised for other purposes, such as retiring his campaign debt.
For the past several months, Election Law at Ohio State and SCOTUSblog have teamed up to track significant election-related lawsuits with the potential to reach the Supreme Court and affect the presidential election. Now, two weeks after Election Day, litigation over the outcome of the election is rapidly diminishing, but it hasn’t yet completely disappeared. Still scheduled for Tuesday, Nov. 17, is a hearing in the Trump campaign’s federal-court lawsuit seeking to delay certification of the popular vote in Pennsylvania. The remaining litigation almost certainly will not have a practical effect on the election’s outcome for a variety of reasons (it would be necessary for President Donald Trump to overturn Democrat Joe Biden’s apparent victory in three states, not enough ballots are at stake even assuming the merits of the legal theories raises, factual evidence is lacking on many of the claims made, and so forth). But as others have observed, there are still some legal principles at stake before this ends up just a matter for the history books.
In a recent Washington Post column, I set forth the basic reasons why litigation over the counting of votes in a presidential election belongs in state, rather than federal, court. If this procedural point is correct, as is also argued in an important amicus brief filed by prominent former GOP officeholders, the pending federal-court case that is the subject of tomorrow’s hearing should be dismissed without consideration of its merits, so that any such claims can be pursued in an appropriate forum established by state law. Here I elaborate on additional details in support of the basic point. Many of these are drawn from research for the book Ballot Battles: The History of Disputed Elections in the United States as well as work done for the American Law Institute’s Principles of Law—Election Administration project.
One can conceive of these points as adding up to the conclusion that federal courts should stay out of cases involving the counting of votes in presidential elections as a matter of equitable discretion — a court of equity historically always can decline to intervene, particularly on a request for a preliminary injunction or temporary restraining order, when the public interest as part of the “balancing of the equities” so dictates — rather than as a strict jurisdictional barrier to federal-district court review. Another way one could think of this is that vote-counting litigation in a presidential election warrants its own special form of an “abstention” doctrine, or at least yields the conclusion that traditional abstention doctrines as applied to this context calls upon federal district courts to abstain rather than getting involved. But whatever doctrinal label one wishes to attach to this conclusion, these factors combine to provide a strong basis for federal district courts refusing to intervene in the litigation over the counting of presidential ballots….