Clarifying the Electoral Count Act Process

Statement from Richard Pildes, Edward Foley, Rick Hasen, Lisa Manheim, and Nate Persily originally posted on Rick Hasen’s Election Law Blog on January 5, 2021:

Given the levels of anxiety about the process for counting electoral votes in Congress, we want to clarify certain fundamental legal facts about that process.  This clarification is necessary because of possible misunderstandings of a recent New Yorker online essay about the process, written by Harvard Law School Professor Jeannie Suk Gerson.

During the election, and even more since then, we have seen one more fevered speculation after another about how the process might be manipulated to keep President Trump in office after Jan. 20th.  Professor Suk is addressing one of these scenarios, though even among the various nightmare imaginings that have been conjured up, this is one of the most far-fetched.

Professor Suk asks what happens if the counting process takes more than five days to complete.  She speculates that “some Republicans” might argue that Congress has to stop counting at that point, even if not all state electoral slates have been counted or rejected by then.  They might further claim that, if no one had reached 270 electoral votes by that point, the election must then be thrown to the House to decide — because the election goes to the House if no one obtains an electoral college majority.

Since the House votes one state, one vote for this, and since a majority of delegations are Republican controlled, the House Republicans would then — in this scenario — vote in Trump as President.  Thus, Republicans might drag the process of counting out, so that it lasts more than five days, and then find a way to anoint Trump as President for a second term.

But this is indeed merely a fevered speculation.  Things simply cannot play out this way.  The statute that governs this process is known as the Electoral Count Act.  Under the Act, there is nothing magical that happens on day five, should the counting go on that long (which is not likely).  The only thing that changes on day five is Congress can no longer go into recess.  That’s designed to put pressure on Congress to complete the process.

But if Congress has not resolved whether to count or reject the vote from all the States and DC by day five, it simply continues the process of debating and resolving the issue for each state.  Indeed, in the 1876-1877 disputed election, Congress did not finish the count until March 2 (two days before inauguration day, which at that time was March 4).  Congress would continue to resolve any debates about every state, through Wyoming, until it completed the process.

Moreover, even if Congress were not to complete this process by Jan. 20th, the House would still not then decide who becomes President.  By virtue of the Constitution and federal statutes, the Speaker of the House (after resigning that position) would then become Acting President, until a new President had been chosen.  The only time the House has any role – which it has not played since 1824 – is if, after Congress has resolved matters from every state and the count has been completed, it still turns out that no one has a majority.

We doubt that any member of Congress would actually claim that the election is thrown to the House if Congress does not complete the count in five days (though who knows these days).  But there would be no legal basis for that assertion, even were the count to take more than five days.  The Republicans who plan to object to the count cannot make Trump President by dragging the process out, even for two weeks, and we are confident they know that.

Case Updates Dec 28 – Jan 1

By Matt Cooper

Arizona:

  • Bowyer v. Ducey remains at the U.S. Supreme Court on an emergency petition filed by Sidney Powell’s legal team. There is no indication that the court intends to rule on the petition prior to the joint session of Congress on Jan. 6.
  • In Ward v. Jackson, a case filed by the chair of the Arizona Republican Party, a petition for writ of certiorari and motion for expedited consideration remain pending in the U.S. Supreme Court after rulings in favor of the defendants at the courts below. As of now, a response brief is due by Jan. 14.

District of Columbia:

  • The case of Wisconsin Voters Alliance v. Pence remains pending in D.C. federal district court. The plaintiffs assert that portions of the Electoral Count Act violate Article II of the U.S. Constitution by restricting state legislatures’ prerogative to post-election certification of Presidential electors. The plaintiffs also allege that laws in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin are unconstitutional delegations of post-election Presidential elector certification duties to executive branch officials. The lawsuit seeks a court order enjoining Vice President Pence from counting Presidential elector votes unless state legislatures affirmatively vote to certify their states’ Presidential electors.

Georgia:

  • In Pearson v. Kemp, a case filed by Sidney Powell’s legal team, a petition for writ of certiorari and motion for expedited consideration remain pending in the U.S. Supreme Court. As of now, a response brief is due by Jan. 14.
  • The case of Still v. Raffensperger remains pending in Fulton County Superior Court, the complaint having been filed on Dec. 17. The plaintiffs allege various violation of Georgia constitutional and statutory law in the running of the November election. The plaintiffs seek a court order decertifying the state’s Presidential election results.
  • In Wood v. Raffensperger, a petition for writ of certiorari and motion for expedited consideration remain pending at the U.S. Supreme Court. As of now, a response brief is due by Jan. 11.

Michigan:

  • In King v. Whitmer, a case filed by Sidney Powell’s legal team, a petition for writ of certiorari and motion for expedited consideration remain pending in the U.S. Supreme Court. As of now, a response brief is due by Jan. 14.
  • The case of Michigan Welfare Rights Organization v. Trump remains pending in federal district court. The plaintiffs’ amended complaint alleges that President Trump violated the Voting Rights Act and the Ku Klux Klan Act by pressuring state legislatures to override the popular vote and appoint Presidential electors.

New Mexico:

Pennsylvania:

  • The Trump campaign’s petition for writ of certiorari and a motion for expedited consideration remain pending in the U.S. Supreme Court in four Pennsylvania Supreme Court cases decided in October and November. For updated U.S. Supreme Court documents, see the case page for In re Canvassing Observation.
  • In Pennsylvania Republican Party v. Boockvar, a motion for writ of certiorari remains pending in the U.S. Supreme Court. The parties have submitted their briefs and the case has been distributed for conference on Jan. 8.

Texas:

  • In Gohmert v. Pence, a U.S. District Judge dismissed a case brought by Texas Congressman Louie Gohmert and others due to lack of standing. The plaintiffs asserted that the elector dispute resolution provisions of the Electoral Count Act, 3 U.S.C. 5 and 3 U.S.C. 15, violate the Electors Clause and the Twelfth Amendment of the U.S. Constitution. They asked the court for a declaratory judgment finding that under the Twelfth Amendment Vice President Pence has exclusive authority and sole discretion to determine which electoral votes to count for a given state. The plaintiffs appealed to the Fifth Circuit for an expedited ruling. A Fifth Circuit panel subsequently issued a brief opinion affirming the district court.

Wisconsin

  • Feehan v. Wisconsin Elections Commission remains at the U.S. Supreme Court on an emergency petition filed by Sidney Powell’s legal team. There is no indication that the court intends to rule on the petition prior to the joint session of Congress on Jan. 6.
  • In Trump v. Biden, the Trump campaign filed a petition for writ of certiorari and a motion for expedited consideration in the U.S. Supreme Court after an adverse ruling in the Wisconsin Supreme Court regarding the campaign’s requested recount.
  • In Trump v. Wisconsin Elections Commission, the Trump campaign filed a petition for writ of certiorari and a motion for expedited consideration in the U.S. Supreme Court after adverse rulings in the federal courts below.

Case Updates Dec 21-25

By Matt Cooper

Arizona:

  • Bowyer v. Ducey, a case filed by Sidney Powell’s legal team, remains on appeal at the Ninth Circuit after a district judge’s ruling in favor of the defendants. As of now, party briefs are not due until well after the Presidential inauguration.
  • In Ward v. Jackson, a case filed by the chair of the Arizona Republican Party, a petition for writ of certiorari and motion for expedited consideration remain pending at the U.S. Supreme Court after rulings in favor of the defendants at the courts below. As of now, a response brief is due by Jan. 14.

District of Columbia:

  • In Wisconsin Voters Alliance v. Pence, the plaintiffs filed a complaint in D.C. federal district court asserting that portions of the Electoral Count Act violate Article II of the U.S. Constitution by restricting state legislatures’ prerogative to post-election certification of Presidential electors. The plaintiffs also allege that laws in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin are unconstitutional delegations of post-election Presidential elector certification duties to executive branch officials. The lawsuit seeks a court order enjoining Vice President Pence from counting Presidential elector votes unless state legislatures affirmatively vote to certify their states’ Presidential electors.

Georgia:

  • In Pearson v. Kemp, a case filed by Sidney Powell’s legal team, a petition for writ of certiorari and motion for expedited consideration remain pending at the U.S. Supreme Court. As of now, a response brief is due by Jan. 14.
  • The case of Still v. Raffensperger remains pending in Fulton County Superior Court, the complaint having been filed on Dec. 17. The plaintiffs allege various violation of Georgia constitutional and statutory law in the running of the November election. The plaintiffs seek a court order decertifying the state’s Presidential election results.
  • In Wood v. Raffensperger, a petition for writ of certiorari and motion to expedite consideration remain pending at the U.S. Supreme Court. As of now, a response brief is due by Jan. 11.

Michigan:

  • In King v. Whitmer, a case filed by Sidney Powell’s legal team, a petition for writ of certiorari and motion for expedited consideration remain pending in the U.S. Supreme Court. As of now, a response brief is due by Jan. 14.
  • In Michigan Welfare Rights Organization v. Trump, the plaintiffs amended their complaint to add a claim that the President violated the Ku Klux Klan Act in allegedly pressuring state legislatures to override the popular vote and appoint Presidential electors. This new claim adds to the original allegation of a Voting Rights Act violation.

New Mexico:

  • The case of Donald Trump for President v. Toulouse Oliver remains pending in federal district court in New Mexico. The campaign seeks a court order vacating certification of the state’s Presidential election results. The plaintiffs filed an amended complaint on Dec. 22.

Pennsylvania:

Texas:

  • In Gohmert v. Pence, Texas Congressman Louie Gohmert and other plaintiffs filed a complaint in federal district court asserting that the elector dispute resolution provisions of the Electoral Count Act, 3 U.S.C. 5 and 3 U.S.C. 15, violate the Electors Clause and the Twelfth Amendment of the U.S. Constitution; The plaintiffs ask for a declaratory judgment finding that under the Twelfth Amendment Vice President Pence has exclusive authority and sole discretion to determine which electoral votes to count for a given state.

Wisconsin:

  • Feehan v. Wisconsin Elections Commission, a case filed by Sidney Powell’s legal, remains pending on appeal at the Seventh Circuit U.S. Court of Appeals after a district judge’s ruling in favor of the defendants. As of now, appellant’s brief is due by Jan. 19.
  • In Trump v. Wisconsin Elections Commission, a three-judge panel of the Seventh Circuit Court of Appeals affirmed a district judge’s decision denying relief to the Trump campaign.

Case Updates Dec 14-18

By Matt Cooper

Arizona:

  • Bowyer v. Ducey, a case filed by Sidney Powell’s legal team, remains on appeal at the Ninth Circuit after a district judge’s ruling in favor of the defendants. As of now, party briefs are not due until well after the Presidential inauguration.
  • In Burk v. Ducey, a Pinal County Superior Court Judge dismissed a complaint alleging violations of the U.S. Constitution and Arizona law by state executive officials in running the November election. The plaintiff sought the decertification of Arizona’s Presidential election results. The judge dismissed the case because as untimely and unauthorized under state law, given that the plaintiff was not a registered voter in the election.
  • In Ward v. Jackson, a case filed by the chair of the Arizona Republican Party, a petition for writ of certiorari and motion for expedited consideration remain pending at the U.S. Supreme Court after rulings in favor of the defendants at the courts below. As of now, a response brief is due by Jan. 14.

Georgia:

  • In Boland v. Raffensperger, the Georgia Supreme Court denied the plaintiff’s emergency direct appeal following a ruling in favor of the defendants at the superior court level. The plaintiff sought the decertification of Georgia’s Presidential election results due to the defendants’ failure to follow Georgia law regarding the verification of voter signatures.
  • In Pearson v. Kemp, a case filed by Sidney Powell’s legal team, a petition for writ of certiorari and motion for expedited consideration remain pending at the U.S. Supreme Court. As of now, a response brief is due by Jan. 14.
  • In Wood v. Raffensperger, a petition for writ of certiorari and motion to expedite consideration remain pending at the U.S. Supreme Court. As of now, a response brief is due by Jan. 11.
  • Beyond the Presidential election, litigation over Georgia’s U.S. Senate runoff election continues. Most recently, the 11th Circuit denied relief to the Georgia Republican Party, which, along with the Loeffler and Perdue campaigns, sought to alter the state’s current signature verification process.

Michigan:

  • In King v. Whitmer, a case filed by Sidney Powell’s legal team, a petition for writ of certiorari and motion for expedited consideration remain pending in the U.S. Supreme Court. As of now, a response brief is due by Jan. 14.

New Mexico:

  • In Donald Trump for President v. Toulouse Oliver, the Trump campaign filed a complaint in federal district court alleging that New Mexico’s Secretary of State violated the Elections and Electors Clause of the U.S. Constitution by failing to follow election laws enacted by the legislature. The campaign seeks a court order vacating certification of the state’s Presidential election results. The defendants’ response is due by Dec. 24.

Pennsylvania:

Wisconsin:

  • Feehan v. Wisconsin Elections Commission, a case filed by Sidney Powell’s legal, remains pending on appeal at the Seventh Circuit U.S. Court of Appeals after a district judge’s ruling in favor of the defendants. As of now, appellant’s brief is due by Jan. 19.
  • In Trump v. Biden, the Wisconsin Supreme Court affirmed the decision of a circuit court judge that upheld the results of recounts requested by the Trump campaign in Dane and Milwaukee Counties.
  • In Trump v. Wisconsin Elections Commission, the parties have filed briefs in the Seventh Circuit Court of Appeals after a decision at the district court level in favor of the defendants. A decision is expected soon.

Electoral College Meeting Times – Dec 14, 2020

We started with the very helpful list of Electoral College meeting places and times from The Green Papers and confirmed/updated the 2020 meeting times through news reports or government websites.

Ordered by TIME OF MEETING (all shown in Eastern Time)

STATE EASTERN TIME
INDIANA 10:00 AM
NEW HAMPSHIRE 10:00 AM
TENNESSEE 10:00 AM
VERMONT 10:00 AM
ARKANSAS 11:00 AM
ILLINOIS 11:00 AM
MISSISSIPPI 11:00 AM
OKLAHOMA 11:00 AM
SOUTH CAROLINA 11:00 AM
DELAWARE 11:30 AM
IOWA 11:30 AM
NEVADA 11:30 AM
KENTUCKY 11:45 AM
ARIZONA 12:00 PM
CONNECTICUT 12:00 PM
GEORGIA 12:00 PM
MARYLAND 12:00 PM
NEW YORK 12:00 PM
NORTH CAROLINA 12:00 PM
OHIO 12:00 PM
PENNSYLVANIA 12:00 PM
RHODE ISLAND 12:00 PM
VIRGINIA 12:00 PM
LOUISIANA 12:30 PM
ALABAMA 1:00 PM
KANSAS 1:00 PM
MINNESOTA 1:00 PM
NEW MEXICO 1:00 PM
SOUTH DAKOTA 1:00 PM
WISCONSIN 1:00 PM
COLORADO 2:00 PM
DISTRICT OF COLUMBIA 2:00 PM
FLORIDA 2:00 PM
IDAHO 2:00 PM
MAINE 2:00 PM
MICHIGAN 2:00 PM
NORTH DAKOTA 2:00 PM
UTAH 2:00 PM
WEST VIRGINIA 2:00 PM
WYOMING 2:00 PM
ALASKA 3:00 PM
MASSACHUSETTS 3:00 PM
MISSOURI 3:00 PM
NEW JERSEY 3:00 PM
TEXAS 3:00 PM
WASHINGTON 3:00 PM
NEBRASKA 3:10 PM
MONTANA 4:00 PM
OREGON 4:30 PM
CALIFORNIA 5:00 PM
HAWAII 7:00 PM

* where the time differed from that on The Green Papers, we’ve included a link to the source for the 2020 meeting time.

Case Updates Dec 7-11

By Matt Cooper

Arizona:

  • In Bowyer v. Ducey, a U.S. District Judge granted the defendants’ motion to dismiss in a case brought by attorney Sidney Powell alleging a wide variety of violations, including some related to the state’s use of Dominion Voting Systems’ hardware and software. The plaintiffs filed a notice of appeal to the Ninth Circuit.
  • In Ward v. Jackson, the Arizona Supreme Court affirmed the decision of a Maricopa County Superior Court Judge who dismissed a case filed by the chair of the Arizona Republican Party. The lawsuit sought to annul the state’s election due to alleged illegalities regarding signature verification. The plaintiff subsequently filed a petition for writ of certiorari in the U.S. Supreme Court.

Georgia:

  • In Boland v. Raffensperger, a Fulton County Superior Court Judge dismissed the plaintiffs’ complaint contesting the results of the Presidential election. The plaintiffs had alleged that Georgia’s Secretary of State permitted non-residents to vote and failed to verify voter signatures as required by state law.
  • In Pearson v. Kemp, a U.S. District Judge dismissed a complaint filed by attorney Sidney Powell alleging a wide variety of state and federal law violations including some related to the state’s use of Dominion Democracy Suite software and devices that allegedly led to statewide ballot fraud. The plaintiffs filed a notice of appeal to the 11th Circuit and also an emergency petition in the U.S. Supreme Court for an extraordinary writ of mandamus.
  • In Trump v. Raffensperger, a Fulton County Superior Court Judge issued an order that the case proceed in the normal course and not on an emergency basis. The Trump campaign subsequently filed an emergency petition in the Georgia Supreme Court asking the court to hear the case. The court denied the campaign’s petition.
  • In Wood v. Raffensperger, a Fulton County Superior Court Judge dismissed a petition for election contest alleging that Georgia officials violated state and federal law in how they administered the November election. The petition asserted wrongdoing in the state’s use of funds from Facebook CEO Mark Zuckerberg’s Center for Tech and Civic Life, as well as in the state’s negotiation of a settlement agreement with voting rights groups regarding absentee ballots.
  • In another case titled Wood v. Raffensperger, the plaintiff filed a petition for writ of certiorari in the U.S. Supreme Court, asking the court for expedited review of an 11th Circuit decision that affirmed a district judge’s dismissal of the case. Plaintiff’s complaint alleged that Georgia’s Secretary of State altered the process established by the Georgia legislature for handling absentee ballots and unlawfully entered into a March 2020 settlement agreement to resolve a court case brought by the Democratic Party of Georgia and others.

Michigan:

  • In Costantino v. City of Detroit, a Wayne County Circuit Court Judge denied the plaintiffs’ motion for an audit by the county clerk of the election results in Wayne County. The judge determined that under Michigan law the plaintiffs should direct their request to the Michigan Secretary of State rather than the court, noting that the Secretary has already made a public commitment to such an audit.
  • In Donald J. Trump for President v. Benson, the Michigan Supreme Court denied the Trump campaign’s application for leave to appeal from an adverse ruling by the Michigan Court of Appeals. The campaign originally filed a lawsuit in the Michigan Court of Claims, asserting 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. A Court of Claims Judge denied relief to the campaign and the Court of Appeals denied leave to appeal.
  • In Johnson v. Benson, the Michigan Supreme Court denied a petition for extraordinary writs of mandamus filed by attorneys of the Thomas More Society that sought to prevent Michigan officials from certifying the results of the November election. The petition had alleged various violations of the Michigan and U.S. Constitution, particularly in officials’ treatment of absentee ballots, which the petitioners asserted was inconsistent with the scheme enacted by the Michigan legislature.
  • In King v. Whitmer, a U.S. District Judge dismissed a complaint brought by attorney Sidney Powell that alleged a variety of state and federal law violations by defendants, including that the state’s use of Dominion voting machines and software permitted widespread voter fraud. The plaintiffs filed a notice of appeal to the 6th Circuit.

Nevada:

  • In Law v. Whitmer, the Nevada Supreme Court issued an opinion affirming a district judge’s dismissal of plaintiffs’ complaint contesting the November election results. The plaintiffs had alleged various irregularities, improprieties, and fraud in Nevada’s election, including those related to mail-in ballot processing machines, electronic voting machines, ballot-counting observation, the processing and counting of provisional ballots, and voting drives.

Pennsylvania:

  • In In Re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 Election, the Pennsylvania Supreme Court denied an emergency petition filed by the Trump campaign. The campaign argued that the Bucks County Board of Elections violated Pennsylvania law by counting 2,177 absentee and mail-in ballots due to deficiencies such as the secrecy envelope being unsealed.
  • In a brief, one-sentence order in Kelly v. Pennsylvania, the U.S. Supreme Court denied an emergency application for injunctive relief filed by Congressmen Mike Kelly and others. The applicants asked the Court to review the constitutionality of the 2019 Act of the Pennsylvania legislature establishing mail-in voting procedures.
  • In Metcalfe v. Wolf, the Pennsylvania Commonwealth Court dismissed the plaintiffs’ complaint for a writ of mandamus that sought a court order for the governor to withdraw certification of the state’s Presidential election results. The plaintiffs had asserted that state officials acted unlawfully in counting defective absentee ballots and in failing to implement recommendations from a Performance Audit Report conducted by the Department of the Auditor General.

Texas:

  • In Texas v. Pennsylvania, the U.S. Supreme Court denied a motion by the state of Texas seeking to invoke the Court’s original jurisdiction in a case against the states of Pennsylvania, Georgia, Michigan, and Wisconsin. Texas Attorney Ken Paxton asserted that the interests of Texas citizens were harmed when non-legislative actors in these states “amended” election laws in violation of the Electors Clause of the U.S. Constitution, permitting unlawful votes in the Presidential election. The complaint sought for the Court to remand the case to the states’ legislatures for the direct appointment of Presidential electors.

Wisconsin:

  • In Feehan v. Wisconsin Elections Commission, a U.S. District Judge dismissed a complaint filed by attorney Sidney Powell alleging a variety of federal constitutional violations by the defendants.  According to the plaintiffs, these violations required the decertification of Wisconsin’s Presidential election results. The plaintiffs filed a notice of appeal to the 7th Circuit.
  • In Trump v. Biden, a Milwaukee County Circuit Judge denied relief to the Trump campaign, which was appealing the results of the recounts it requested in Dane and Milwaukee Counties. The campaign immediately appealed to the Wisconsin Supreme Court, which heard oral arguments on Saturday. A decision is expected shortly.
  • In Trump v. Wisconsin Elections Commission, a U.S. District Judge dismissed the Trump campaign’s complaint alleging that Wisconsin election officials unlawfully departed from the state legislative scheme for appointing Presidential electors. Allegations included (1) ignoring or compromising state law limits on the availability of mail-in ballots, (2) proliferating unmanned mail-in ballot drop boxes, (3) processing and counting vast numbers of mail-in ballots outside the visibility of poll watchers, (4) reducing or eliminating mandatory voter certifications for mail-in ballots, and (5) permitting “ballot tampering.” The plaintiffs filed a notice of appeal to the 7th Circuit.

Case Updates Nov 30-Dec 4

By Matt Cooper

Arizona:

  • In Ward v. Jackson, a Maricopa County Superior Court judge denied relief requested in a petition filed by the chair of the Arizona Republican Party. The petition asked the court to annul the state’s election and void the certification of Biden electors, alleging illegal conduct with respect to signature verification.
  • In Bowyer v. Ducey, a legal team led by Sidney Powell filed a federal lawsuit requesting decertification of Arizona’s Presidential election results, asserting various constitutional violations. The complaint alleges fraud in the “counting and fabrication” of hundreds of thousands of illegal ballots, including fraud related to the use of Dominion Election Systems’ hardware and software in Maricopa County. The court has scheduled a hearing on Tuesday, December 8 for oral argument on pending motions to dismiss.
  • In Stevenson v. Ducey, four members of the Arizona Election Integrity Association filed a petition of election contest in Maricopa County Superior Court, asking the court for an injunction preventing the certification of Arizona’s Presidential election results and requiring the governor to certify Presidential electors selected by the legislature. Among the petition’s allegations are that officials did not enforce state law residency requirements, permitted “double voting,” and created illegal disparities in ballot and drop box voting by their use of funds from Facebook CEO Mark Zuckerberg’s Center for Tech and Civic Life.

Georgia

  • In Wood v. Raffensperger, the 11th Circuit U.S. Court of Appeals dismissed the plaintiff’s appeal, agreeing with a district court judge that the plaintiff did not have standing to sue, and that his claims were moot because Georgia already certified its Presidential election results.
  • In Pearson v. Kemp, a federal case filed by a legal team led by Sidney Powell, the 11th Circuit U.S. Court of Appeals dismissed the plaintiffs’ interlocutory appeal, finding that it did not have jurisdiction to review a district judge’s non-final order. The district judge issued an order preventing the defendants from altering software or data on voting machines in three counties rather than all ten requested by the plaintiffs. The case is back in district court with a hearing on the complaint on Monday at 10am.
  • In Boland v. Raffensperger, the plaintiffs filed a complaint in Fulton County Superior Court seeking an audit of the voter rolls to compare to ballots cast, as well as a decertification of Georgia’s election results and a new election. The complaint includes allegations that the defendants allowed non-residents to vote and failed to verify voter signatures as required by state law.
  • In Trump v. Raffensperger, the Trump campaign filed a petition in Fulton County Superior Court to contest the results of the Presidential election. The petition alleges a wide variety of unlawful conduct by defendants in violation of the Georgia Constitution and election code, including violations concerning signature matching to confirm the identity of absentee voters and the denial of the petitioners’ fundamental right to a transparent and open election.

Michigan

  • In Donald Trump for President v. Benson, the Michigan Court of Appeals denied the campaign’s application for leave to appeal a Court of Claims judge’s decision. The Court of Appeals found the matter moot, given that the state board of canvassers had already certified the election results.
  • In Costantino v. City of Detroit, the defendants filed responses in opposition to the plaintiffs’ motion in Wayne County Circuit Court for an audit of the vote in Wayne County. At a hearing on the motion late in the week, media reports indicated that the circuit court judge promised a decision by Tuesday, December 8.
  • In King v. Whitmer, a federal case filed by a legal team led by Sidney Powell, the defendants filed responses in opposition to plaintiffs’ emergency motion for a temporary restraining order decertifying Michigan’s Presidential election results. The plaintiffs requested that the court rule on the motion prior to December 8, the “safe harbor” date for states to submit their slates of Presidential electors under federal law.

Minnesota

  • In Kistner v. Simon, the Minnesota Supreme Court dismissed a petition seeking to prevent the state from certifying election results and asking for a statewide, bipartisan election audit. The petitioners based their argument on allegations that actions taken by Minnesota’s Secretary of State, such as entering into a consent agreement suspending the witness requirement for absentee ballots, violated various provisions of the U.S. and Minnesota Constitutions. The court found the petition barred by the doctrine of laches, in that the petitioners could have raised their claims with the court earlier in the election process, and cannot raise them now so close to election certification deadlines.

Nevada

  • In Law v. Whitmer, a Carson City District Court judge dismissed a complaint alleging irregularities, improprieties, and fraud in the running of Nevada’s election, including those related to mail-in ballot processing machines, electronic voting machines, ballot-counting observation, the processing and counting of provisional ballots, and voting drives. The plaintiffs had sought an order that the Republican electors be certified as the duly elected Presidential electors from the state or that no Presidential electors be certified.

Pennsylvania

  • In Kelly v. Pennsylvania, the plaintiffs filed an emergency application in the U.S. Supreme Court asking the court to rule that 2019 Pennsylvania legislation allowing no-excuse mail-in voting is unconstitutional. Justice Alito requested responses to the application by Tuesday, December 8 at 9am. Earlier in the week, the plaintiffs unsuccessfully sought a similar order from the Pennsylvania Supreme Court.
  • In In Re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 Election, the Trump campaign filed an emergency petition in the Pennsylvania Supreme Court asking the court to find that the Bucks County Board of Elections violated Pennsylvania law by counting 2,177 absentee and mail-in ballots whose secrecy envelopes were not sealed.
  • In Republican Party of Pennsylvania v Boockvar, Pennsylvania’s Secretary of State and others filed their responses to the Pennsylvania Republican Party’s petition for writ of certiorari in the U.S. Supreme Court. The petition asks the Court to rule on the merits of the case, which involves whether the Pennsylvania Supreme Court violated the U.S. Constitution by extending the deadline for the receipt of mail-in ballots three days beyond what the state legislature set by statute.

Wisconsin

  • In a 4-3 ruling in Trump v. Evers, the Wisconsin Supreme Court denied a petition filed by the Trump campaign alleging various errors by defendants with respect to absentee ballots that affected the outcome of the Presidential election. The majority of the court determined that it did not have authority to hear the case, and that petitions contesting elections must be filed at the circuit court level.
  • In another 4-3 ruling in Wisconsin Voters Alliance v. Wisconsin Elections Commission, the Wisconsin Supreme Court denied the petitioners’ request to void the state’s election of Presidential electors and order that the choice of electors revert back to the legislature. The court determined that issues of material fact made the case inappropriate to consider as an original action, given that the court is set up to rule on issues of law once lower courts have made factual findings.
  • In still another 4-3 ruling in Mueller v. Wisconsin Election Commissioners, the Wisconsin Supreme Court denied the petitioners’ request for a declaration that the Wisconsin Elections Commission communicated illegal advice to county clerks regarding absentee ballot drop boxes, and that the court should prevent the certification of Wisconsin’s Presidential election results.
  • In Feehan v. Wisconsin Elections Commission, a legal team led by Sidney Powell filed a complaint in federal district court alleging various violations of state and federal law including claims that the defendants counted fraudulent and illegal ballots, the extent of which requires the decertification of Wisconsin’s Presidential election results. Briefs on the plaintiffs’ motion for a temporary restraining order are due by Tuesday, December 8.
  • In Trump v. Wisconsin Elections Commission, the Trump campaign filed a complaint in federal district court alleging that Wisconsin election officials unlawfully departed from the state’s legislative scheme for appointing Presidential electors. The campaign asks the court to remand the case to the Wisconsin legislature for the purpose of determining a remedy according to its authority under the Electors Clause of the U.S. Constitution. The court scheduled a conference with the parties on Wednesday, December 9 and a hearing on Thursday, December 10.
  • In Trump v. Biden, the Trump campaign filed notices of appeal of the recounts it requested in Milwaukee and Dane Counties.

Case Updates Nov 23-27

By Matt Cooper

Arizona:

  • In Ward v. Jackson, the plaintiff, who is the chair of the Arizona Republican Party, filed a statement of election contest in Maricopa County Superior Court alleging that election officials failed to allow observation of the voter signature verification process as required by Arizona law, and that she should be entitled to a reasonable inspection of signatures. The plaintiff asks the court to annul Arizona’s election and declare the state’s certification of Biden electors to have no legal effect.

Georgia:

  • In Pearson v. Kemp, a legal team led by Sidney Powell filed a complaint in federal district court alleging that election officials violated state and federal law in the running Georgia’s election. The allegations are wide-ranging and include that officials allowed non-residents to vote in the state, failed to develop auditable procedures for processing absentee ballots, did not provide meaningful access to party observers of the electoral process, and used equipment and software of Dominion Voting Systems that resulted in statewide ballot fraud.
  • In Wood v. Raffensperger, the plaintiffs filed a complaint in Fulton County Superior Court, alleging that election officials violated state and federal law in how they administered the November election. Allegations involve how officials used funds received from Facebook CEO Mark Zuckerberg’s Center for Tech and Civic Life as well as a settlement agreement entered into by the state regarding absentee ballots. The plaintiffs seek the decertification of Georgia’s Presidential election results.
  • In another case titled Wood v. Raffensperger, the plaintiffs appealed a decision of a federal district judge issued last week in which the judge denied the plaintiffs’ emergency motion to halt the certification of Georgia’s Presidential election results. The plaintiffs filed their initial brief in the Eleventh Circuit U.S. Court of Appeals, asking for a determination that the results of the Presidential election in Georgia were defective due to unlawful procedures regarding absentee ballots.

Michigan:

  • In Costantino v. City of Detroit, the Michigan Supreme Court denied plaintiffs’ application for leave to appeal a court of claims judge’s decision. The judge denied plaintiffs’ motion for an order blocking the certification of election results in Wayne County. The plaintiffs had made allegations of fraud and misconduct related to the counting of ballots at the TCF Center in Detroit.
  • In King v. Whitmer, a legal team led by Sidney Powell filed a complaint in federal district court alleging that election officials violated various state and federal laws in running Michigan’s election. Allegations include denying meaningful access to observe the counting of votes and permitting widespread voter fraud due to the use of Dominion Voting Systems machines and software. The plaintiffs ask for the decertification of Michigan’s Presidential election results.
  • In Johnson v. Benson, a petition was filed in the Michigan Supreme Court alleging that the way in which election officials conducted the election violated the U.S. and Michigan Constitutions. The petitioners ask the court to enjoin the certification of Michigan Presidential election results, as well as for a statewide election audit and the appointment of a special master to investigate fraud and irregularities.

Pennsylvania:

  • In Donald J. Trump for President v. Boockvar, the Third Circuit U.S. Court of Appeals affirmed the decision of a district judge dismissing a lawsuit brought by the Trump campaign that sought to block the certification of Pennsylvania’s Presidential election results. The campaign had alleged that election officials failed to provide legally required access to the ballot-counting process and permitted residents to “cure” ballots in some counties but not in others.
  • In Kelly v. Commonwealth, the Pennsylvania Supreme Court vacated a Commonwealth Court order that had preliminarily prevented further action by the state in certifying the Presidential election results. The Pennsylvania Supreme Court dismissed the petition brought by Pennsylvania Republican legislators challenging the 2019 bipartisan bill that established mail-voting for the state.
  • Ruling on the consolidated Philadelphia and Allegheny County cases of In Re: Canvass of Absentee and Mail-In Ballots and In Re: 2,349 Ballots in the 2020 General Election, the Pennsylvania Supreme Court determined that the state election code does not require counties to disqualify mail-in ballots of voters who signed the outer envelope but neglected to handwrite their name, their address, or the date.

Wisconsin:

  • In Wisconsin Voters Alliance v. Wisconsin Elections Commission, the Wisconsin Voters Alliance filed a petition for original action in the Wisconsin Supreme Court asserting that the Wisconsin Elections Commission and other election officials illegally circumvented the state’s absentee voting laws, in part by how officials used funds received from Facebook CEO Mark Zuckerberg’s Center for Tech and Civic Life. The petitioners ask the court to void Wisconsin’s election results.
  • In Mueller v. Wisconsin Election Commissioners, a petition was filed in the Wisconsin Supreme Court alleging that the Wisconsin Elections Commission communicated illegal interpretations of state law to county clerks regarding the use of absentee ballot drop boxes. The petitioners ask the court to enjoin the certification of Wisconsin’s election results.

Case Updates Nov 16-20

By Matt Cooper

Arizona:

  • In Arizona Republican Party v. Fontes, a Maricopa County Superior Court Judge granted the defendant’s motion to dismiss in a case involving the hand count sampling method Arizona law required the county recorder to use.

Georgia:

  • In Wood v. Raffensperger, a U.S. District Judge denied plaintiffs’ motion for a temporary restraining order seeking to block the certification of Georgia’s vote due to an allegedly unlawful settlement agreement earlier entered into by the Secretary of State.

Michigan:

  • In Donald J. Trump for President v. Boockvar, the Trump campaign voluntarily dismissed its complaint seeking to block the certification of Michigan’s vote, indicating that its goals were met when the Wayne County canvassing board refused to certify the county’s election results, though the board later did certify the results.
  • In Costantino v. City of Detroit, the plaintiffs filed an application for leave to appeal to the Michigan Supreme Court, pressing forward with their assertions that due to violations of Michigan law, the court should order an independent audit of the integrity of the election in Detroit.
  • In Michigan Welfare Rights Organization v. Trump, the plaintiffs filed a complaint alleging federal Voting Rights Act violations by the President and his campaign in pressuring state and local officials not to certify election results.

Nevada:

  • In Election Integrity Project of Nevada v. Cegavske, the plaintiffs filed a motion for an emergency permanent injunction, attempting to prevent certification of the state’s election results due to alleged widespread fraud made possible by unconstitutional mail-in voting legislation. A Clark County District Court Judge denied the plaintiffs’ motion.
  • In Law v. Whitmer, the plaintiffs filed a complaint in Carson City District Court alleging that due to various alleged irregularities, improprieties, and fraud, Nevada should not certify its election results.

Pennsylvania:

  • In Donald J. Trump for President v. Boockvar, a U.S. District Judge granted the defendants’ motion to dismiss a complaint brought by the Trump campaign alleging violations of the Equal Protection Clause of the U.S. Constitution. The Trump campaign filed notice of its intent to appeal to the Third Circuit.
  • The Pennsylvania Supreme Court agreed to hear two cases involving whether certain mail-in ballot lacking some of the technical requirements set forth by Pennsylvania law should be counted. One case originated in Philadelphia County, filed by the Trump campaign: In Re: Canvass of Absentee and Mail-in Ballots. The other case originated in Allegheny County, filed by a candidate for state senate: In Re: 2,349 Ballots in the 2020 General Election. In a third case, the Allegheny County Board of Elections filed a petition for the court to hear a matter brought by the same state senate candidate involving whether certain provisional ballots should be counted, even if voters did not sign in all the required places on the outer envelope. That case is In Re: Allegheny County Provisional Ballots.
  • In Kelly v. Commonwealth, Pennsylvania Republican legislators and others filed a lawsuit against the Secretary of State and Governor, alleging that the 2019 Act of the Pennsylvania legislature establishing mail-in voting procedures is unconstitutional and therefore the state should not certify the results of the 2020 election.

Why counting presidential votes is not for federal district courts

By Edward B. Foley
This post first appeared as a Symposium on SCOTUSBlog

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 raised, 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.

First, at the beginning of the 20th century, in a case involving allegations of ballot-box stuffing in a Kentucky gubernatorial election, Taylor v. Beckham, the Supreme Court invoked the political question doctrine to create a strict jurisdictional barrier to any federal court consideration of 14th Amendment claims arising from the vote-counting dispute. The political question doctrine had been articulated prior to the adoption of the 14th Amendment in the Rhode Island case of Luther v. Borden. Chief Justice Melville Fuller’s opinion for the Court in Taylor v. Beckham extended the prohibition on Article III federal courts becoming involved in this kind of fight over the outcome of an election to claims resting on the 14th Amendment. The court’s opinion is explicit on this jurisdictional point: “We must decline to take jurisdiction on the ground of deprivation of rights embraced by the 14th Amendment.”

Second, the jurisdictional barrier imposed by Taylor v. Beckham was well settled by subsequent precedents, including Snowden v. Hughes, to the point that Justice Hugo Black considered it straightforward when he granted an emergency order to deprive the federal district court of jurisdiction over the vote-counting dispute in the infamous case involving Ballot Box 13 in Lyndon Johnson’s race for the U.S. Senate in 1948. The dramatic story of this litigation is well chronicled by Robert Caro in his prizewinning volume, Means of Ascent, as part of Caro’s multi-volume biography of Johnson. But drama aside, Black considered the legal proposition involved mundane. As one of his biographers put it, “The legal principle involved was not complicated: federal courts are supposed to stay out of state elections.

Thirdthis straightforward lack of federal-court jurisdiction in a vote-counting case is why Richard Nixon in the 1960 presidential election had no recourse to federal courts as an option for the possibility of overturning allegations of fraud in favor of the Kennedy-Johnson ticket in both Illinois and Texas. There has been much comparison in public discourse between this year and 2000, but not nearly as much public discussion of the possible comparison between this year and 1960, which might be the more apt comparison because Nixon would have needed to overturn the results in two states, not just one (whereas in 2000 the fight for the presidency focused on just a single state, Florida). When comparing Nixon’s position in 1960 to Trump’s position this year, Nixon would have had the much better case for claiming irregularities that might actually have made a difference, and yet there was no avenue for pursuing those vote-counting claims in federal court.

Fourth, the Warren court’s “reapportionment revolution” starting with Baker v. Carr and Reynolds v. Sims changed the jurisprudence. But until Bush v. Gore, the Supreme Court never had applied that new jurisprudence to a vote-counting case. Bush v. Gore, in its haste, failed to address the precedent of Taylor v. Beckham, which did involve vote-counting, and thus these two precedents — at the opposite ends of the 20th century — remain in conflict, which the court never has acknowledged or explained. The treatment of Taylor v. Beckham in Baker v. Carr is pretty flimsy and does not squarely overrule that precedent along the way to holding the redistricting claim at issue there justiciable. Thus, there is still more work for the Supreme Court to do in putting all of its relevant precedents together into a coherent whole.

Fifth, even accepting that Bush v. Gore implicitly overruled Taylor v. Beckham on the power of the Supreme Court itself to address 14th Amendment issues that arise in the context of a vote-counting dispute when reviewing a judgment of a state supreme court, there is the separate question of whether a federal district court should entertain jurisdiction over this kind of case. If the research for Ballot Battles is correct, it was not until 1994, in an election for the chief justice of the Supreme Court of Alabama, that a lower federal court ever took jurisdiction over a vote-counting dispute in a statewide election, in direct opposition to Black’s decree in the “Ballot Box 13” dispute in 1948. Thus, for the first two centuries of the republic, nothing like this federal-court intervention into a state’s vote-counting proceedings had ever happened in a statewide election.

Sixth, although the Bush campaign in 2000 went to federal district court in an effort to get relief, it did not prevail there. It needed to go to the U.S. Supreme Court on review from the Florida Supreme Court in order to get relief, as it did twice. That is how it should be, as it would contravene the premises of the Electoral Count Act of 1887 and its “safe harbor provision” — invoked by the Supreme Court in both of its 2000 Bush decisions — for a federal district court to interfere with the state’s own adjudicatory procedures, including its use of state courts, to resolve any disputes over the counting of votes in a presidential election.

Sevenththe Electoral Count Act was adopted before Taylor v. Beckham was decided, but it rests on the same basic premise of no federal court involvement in a disputed presidential election. Moreover, for the entire decade between the resolution of the dispute between Rutherford B. Hayes and Samuel Tilden in 1877 and the enactment of the ECA in 1887, Congress considered various institutional options for what should be the tribunal to resolve a ballot-counting dispute in a presidential election. They were informed by their experience of the Electoral Commission they created for the Hayes-Tilden dispute. The leading authors of the ECA served on the commission itself (Sens. George Edmunds and George Hoar) or were lawyers for Hayes arguing before the commission (Sen. William Evarts). They rejected another federal electoral commission as a model. They rejected federal judicial involvement in the key legislative debates on the ECA. They made a conscious and explicit decision to leave this kind of dispute to the tribunals of the states. They were thoroughly “states’ rights” in this post-Reconstruction philosophy, even if our own generation would reject that kind of “states’ rights” philosophy were we to amend the ECA. Consequently, a proper construction of the ECA requires keeping vote-counting disputes over presidential ballots out of federal district court, so that state courts can handle these cases pursuant to state law.

Eighth, as a practical matter, it’s worth considering just how dangerous to safe harbor status even well-meaning federal district judges might be. (To achieve the safe harbor of 3 U.S.C. § 5, a state must do two things: One, it must resolve all disputes over its popular vote for president, including any applicable lawsuits, by the specified deadline, which this year is Dec. 8; and two, it must resolve those disputes using rules and procedures that state law had in place before Election Day itself, Nov. 3. If a state achieves these two prerequisites, then Congress promises to treat as “conclusive” the state’s “final determination” of its popular vote, upon which its appointment of electors is based, when Congress meets to count the electoral votes on Jan. 6.) Tuesday’s hearing in the Trump campaign’s federal-court case in Pennsylvania is exactly two-fifths of the way through the entire five-week safe harbor period. There is not a lot of time to wrap things up.

When the American Law Institute’s Principles of Law-Election Administration project considered this topic, over a multi-year period and on a nonpartisan basis involving a group of advisers who included leading recount lawyers associated with both major political parties, the strong consensus judgment was that it was extremely difficult to fit in all of the state-law proceedings that may be necessary in time to meet the congressional five-week safe harbor deadline. The project even developed a model five-week calendar to demonstrate how, with careful planning, a state might be able to complete judicial review of the canvassing of returns, any recount that might be necessary, and any judicial contest of the election’s results, including all state-court appeals of these proceedings. There simply was no room within this tight five-week schedule for collateral federal district-court involvement, however well-intentioned, to delay or interfere with state-law steps. Any issues of federal law, like due process or equal protection, can be handled as part of the state-court proceedings, but there is no time for both state-court and federal-court litigation over the same ballots in dispute.

Think of the factual issues to be litigated. How many ballots are allegedly in the category of having been wrongfully counted because of an impermissible opportunity to “cure” that should not have been granted? This key fact is unclear to me from the Trump campaign’s brief seeking emergency relief in its federal case.

Pennsylvania law explicitly provides for a judicial contest of the result of an election for the office of “presidential elector” — after completion of the certification of the counting of the popular vote. When is this contest supposed to happen, in order to be complete by the safe harbor deadline — especially if the federal district court gets involved and delays certification, even for a “brief pause” as requested by the Trump campaign?

How long is the federal court going to take to do the factfinding required by the Trump campaign’s motion, assuming that there are any credible factual claims to pursue? And what about the inevitable appeal to the U.S. Court of Appeals for the 3rd Circuit? Does the judicial contest under Pennsylvania law need to wait until all this federal court litigation is resolved?

This is precisely the problem — except even worse because it is in federal court — that occurred in Florida in 2000. Because the Florida Supreme Court inappropriately rewrote the deadlines for the pre-certification “protest” phase of the process, there ended up being inadequate time for the post-certification “contest” phase before arrival of the safe harbor deadline. If the federal district court in Pennsylvania (or elsewhere) gets involved with any factfinding necessary to adjudicate an equal protection claim prior to certification of the popular vote, it’s going to prevent the ability of the state to conduct its own proceedings, including the kind of judicial contest envisioned in Pennsylvania law, as the state is entitled to do under the safe harbor provision. It is one thing for a state supreme court to mess up the deadlines and procedures set by state statute — and that might raise an Article II issue — but it would be quite another affront to the Article II power of state legislatures to determine the “manner” of appointing the state’s electors for a federal district court to mess up the state-law procedures for adjudicating any claims involving the counting of the state’s popular vote upon which the appointment of electors is based.

There is more that could be said in support of federal-court abstention in order to permit the state’s own legal system to achieve safe harbor status under 3 U.S.C. § 5. But the preceding points should suffice. Whether the barrier to federal-district court involvement in this kind of case is considered strictly jurisdictional or just prudential, as a matter of sound discretion given the nature of the relief requested in the circumstances involved — including the tight timeframe for meeting the safe harbor deadline — the answer should be crystal-clear: These claims should be litigated in state court, with any review if necessary in the U.S. Supreme Court, as in Bush v. Gore. It would be wholly without precedent in all of U.S. history, and entirely contrary to the fundamental premises of the Electoral Count Act itself (as well as the Article II premises on which that act rests) for a federal district court to insert itself into this kind of dispute.