By Matt Cooper
Litigation related to the Presidential election continued this week with a number of new cases filed. Election Law at Ohio State created a subset of these cases available at go.osu.edu/pec. See below for updates by state.
- In Trump v. Hobbs, the plaintiffs filed a notice indicating that due to the statewide vote tabulation, their claims related to Presidential electors are now moot.
- In Arizona Republican Party v. Fontes, the plaintiffs challenge the Maricopa County Recorder’s process for conducting statutorily-required hand count sampling.
- Two federal cases were filed challenging the running of the election in Pennsylvania: Donald J. Trump for President v. Boockvar and Pirkle v. Wolf.
- In Bognet v. Boockvar, a three-judge panel of the Third Circuit U.S. Court of Appeals denied relief to the plaintiffs-appellees, who sought a determination that the Pennsylvania Supreme Court unlawfully usurped the power of the state legislature by extending the mail-in ballot receipt deadline three days.
- In re: Canvassing Observation remains pending at the Pennsylvania Supreme Court and has been briefed. The Pennsylvania Speaker of the House and Majority Leader recently filed petitions to intervene.
- Two cases remain at the Pennsylvania Commonwealth Court: Hamm v. Boockvar and another case titled Donald J. Trump for President v. Boockvar, in which a Commonwealth Court Judge ordered counties not to count certain segregated ballots for which voters were provided additional time to correct mistakes.
- At the county level, challenges to the counting of certain ballots were rejected in Montgomery and Philadelphia Counties. Challenges remain pending in Allegheny and Bucks Counties.
- In Republican Party of Pennsylvania v. Boockvar, Pennsylvania Republicans’ petition for writ of certiorari remains pending at the U.S. Supreme Court in a case challenging the Pennsylvania Supreme Court decision mentioned above.
- A new federal case was filed challenging the running of the election in Wisconsin: Langenhorst v. Pecore.
(re-posted with updates on Nov 11)
By Matt Cooper
On Saturday, numerous news organizations including the Associated Press “called” the Presidential race, declaring that former Vice President Joe Biden had won. Nevertheless, election cases remain pending around the country, including cases filed by President Donald Trump’s campaign. President Trump has not conceded and has expressed an intention to proceed with litigation. Many lawsuits were filed in the days around Election Day, including in the states of Arizona, Georgia, Michigan, Nevada, and Pennsylvania. Courts rather quickly dismissed a fair number of these lawsuits, though some cases remain active including the cases below, many of which were filed in Pennsylvania:
- In Trump v. Hobbs, the Trump campaign filed suit in Maricopa County Superior Court, alleging that Maricopa County elections officials violated state and federal law in dealing with ballots rejected by an electronic tabulation device.
- In Donald J. Trump for President v. Benson, the Trump campaign alleged that Michigan’s Secretary of State unlawfully failed to provide an opportunity for an election inspector of each political party to be present at each absent voter counting board.
- In Republican Party of Pennsylvania v. Boockvar, the Trump campaign filed a motion to intervene in the U.S. Supreme Court in a case in which the Pennsylvania Republican Party filed a petition for writ of certiorari. The case involves whether the Pennsylvania Supreme Court could lawfully extend the mail-in ballot receipt deadline past the Election Day deadline established by the state legislature. The Trump campaign subsequently filed an emergency application for an injunction, asking the court to ensure that Pennsylvania ballots arriving after Election Day are segregated in case later relevant to resolve the legal dispute. Justice Alito subsequently issued an order requiring county boards of elections to segregate the ballots.
- In the related case of Bognet v. Boockvar, the parties are filing briefs in the Third Circuit U.S. Court of Appeals on the issue of whether a district judge erred in not issuing a preliminary injunction preventing Pennsylvania from counting mail-in ballots arriving after Election Day as allowed by the Pennsylvania Supreme Court’s decision.
- In In re: Canvassing Observation, the Pennsylvania Supreme Court is hearing an appeal on whether the Philadelphia County Board of Elections provided meaningful access to the ballot canvassing process to political party observers.
- In Barnette v. Lawrence, two Republican electors filed a lawsuit alleging that Montgomery County, a populous county near Philadelphia, violated Pennsylvania law by pre-canvassing mail-in ballots.
- In Donald J. Trump for President v. Boockvar (Commonwealth Court), the Trump campaign alleges that Pennsylvania’s Secretary of State unlawfully extended the time period during which mail-in voters can provide missing proof of identification.
- In Donald J. Trump for President v. Montgomery County Board of Elections, the Trump campaign asserts that the Montgomery County Board of Elections acted in violation of Pennsylvania law when it allegedly canvassed and counted absentee and mail-in ballots for which the outer declaration envelope was not completely filled in with voters’ signature, address, and date.
- In Hamm v. Boockvar, the plaintiffs alleges that instructions sent by Pennsylvania’s Secretary of State to county election officials about providing information to party and candidate representatives during the pre-canvass on voters whose ballots were rejected violates Pennsylvania law. The Pennsylvania Commonwealth Court ordered the segregation of certain provisional ballots cast on Election Day.
By Matt Cooper
- In Carson v. Simon, a three-judge panel of the Eighth Circuit U.S. Court of Appeals reversed the decision of a district judge who had ruled that Republican electors did not have standing to challenge the extension by the Minnesota Secretary of State of the mail-in ballot receipt deadline. The Eighth Circuit panel concluded that the electors did have standing and that preliminary relief on their constitutional challenge to the deadline extension was warranted. The Eighth Circuit blocked the extension of the deadline and ordered that mail-in ballots arriving after Election Day be segregated from other mail-in ballots, in case their validity becomes an issue at a later stage of the litigation. The Trump campaign and others also filed a petition in the Minnesota Supreme Court to ensure that late-arriving mail-in ballots are segregated by election officials. See Trump v. Simon. News reports have indicated that the Minnesota Secretary of State will not seek a stay from the U.S. Supreme Court of the Eighth Circuit decision.
- In Moore v. Circosta, the U.S. Supreme Court denied an application by North Carolina Republican legislators to stay a federal district judge’s decision that permitted the state election board’s extension of the mail-in ballot receipt deadline. The court did not provide reasons for denying the application. Justice Thomas would have granted the application. Justice Gorsuch wrote a dissenting opinion, which Justice Alito joined. The next day, the Supreme Court denied a similar application stemming from North Carolina state courts’ refusal to block a trial court consent judgment ordering the board to extend the deadline.
- Last week, in Pennsylvania Democratic Party v. Boockvar, the U.S. Supreme Court denied a motion by the Pennsylvania Republican Party and others to block a decision of the Pennsylvania Supreme Court extending the absentee ballot receipt deadline. Pennsylvania Republicans subsequently filed a petition for writ of certiorari with the U.S. Supreme Court, asking the court to rule on the merits of the case. This week, the U.S. Supreme Court denied Republicans’ motion to expedite its consideration of the case, ensuring that the court would not rule prior to Election Day. Luzerne County, Pennsylvania filed a motion for new Justice Amy Coney Barrett to recuse herself from the case, but the motion was subsequently withdrawn after the Luzerne County Council voted against proceeding with the motion.
- In Bognet v. Boockvar, U.S. District Judge Kim Gibson determined that the Pennsylvania Supreme Court’s September decision creating a presumption of timeliness for absentee ballots arriving within the three-day period after Election Day, but without a postmark or with an illegible postmark, likely violates the Equal Protection Clause of the U.S. Constitution. However, Judge Gibson denied relief to the plaintiffs due to the close proximity of the election and the confusion a change in rules would cause. The plaintiffs appealed to the Third Circuit, which denied their motion for an expedited briefing schedule. The court ordered the parties to file briefs by Monday of the week following the week of Election Day.
- In Anti-Defamation League v. Abbott, the Texas Supreme Court reversed a decision of the Third District Court of Appeals and dissolved an injunction issued by the trial court that blocked Governor Abbott’s order authorizing only one drop-off location per county for absentee ballots. Governor Abbott’s order therefore remains in effect.
- In Hotze v. Hollins, plaintiffs filed a complaint in federal district court against Harris County, Texas clerk Chris Hollins, alleging that the county’s provision of curbside voting violates Texas election law and the U.S. Constitution. The plaintiffs have asked the court to order the rejection of any votes already cast according to the county’s curbside procedures. A district judge has scheduled an emergency hearing for Monday morning.
U.S. Postal Service Cases:
- In Washington v. Trump, U.S. District Judge Stanley Bastian ordered daily hearings through Nov. 10 for the USPS to report on facilities and processing centers in particular regions of Michigan and Wisconsin.
- In Democratic National Committee v. Wisconsin State Legislature, the U.S. Supreme Court denied the application of the Democratic National Committee and others seeking to vacate a Seventh Circuit decision that blocked a district judge’s extension of Wisconsin’s absentee ballot receipt deadline. The court did not issue a majority opinion explaining the reasons for the denial, but Chief Justice Roberts issued a concurring opinion attempting to reconcile the case with a differing result in Pennsylvania Democratic Party v. Boockvar. Justices Gorsuch and Kavanaugh issued separate concurring opinions, while Justice Kagan authored a dissent.