06 Jan Key Cases Addressing Claims Concerning the 2020 Presidential Election
on 01/06/2021 in Case News & Commentary
Arizona:
Ward v. Jackson (election contest): https://electioncases.osu.edu/case/ward-v-jackson/
From the Maricopa County Superior Court Judge’s decision:
“The Court finds no misconduct, no fraud, and no effect on the outcome of the election.”
“The evidence does not show illegal votes.”
“The evidence does not show an illegal vote count.”
From the Arizona Supreme Court’s decision affirming the Superior Court:
“The Court concludes, unanimously, that the trial judge did not abuse his discretion in denying the request to continue the hearing and permit additional inspection of the ballots. The November 9, 2020 hand count audit revealed no discrepancies in the tabulation of votes and the statistically negligible error presented in this case falls far short of warranting relief under A.R.S. § 16-672. Because the challenge fails to present any evidence of “misconduct,” “illegal votes” or that the Biden Electors “did not in fact receive the highest number of votes for office,” let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results, the Court need not decide if the challenge was in fact authorized under A.R.S. § 16-672 or if the federal “safe harbor” deadline applies to this contest. Therefore, IT IS ORDERED affirming the trial court decision and confirming the election of the Biden Electors under A.R.S. § 16-676(B).”
A petition for writ of certiorari is pending at the U.S. Supreme Court.
Georgia:
Boland v. Raffensperger (election contest): https://electioncases.osu.edu/case/boland-v-raffensperger/
From a Fulton County Superior Court Judge’s decision dismissing the case:
“Even if Plaintiff’s Complaint could be brought under O.C.G.A. § 21-2-521, it also fails to state a claim upon which relief can be granted because it is based on the premise that the election is in doubt because the voter rolls were not properly maintained, and because election officials did not properly verify voter signatures. Even if credited, the Complaint’s factual allegations do not plausibly support his claims. The allegations in the Complaint rest on speculation rather than duly pled facts. They cannot, as a matter of law, sustain this contest. * * * The Court finds that Plaintiff’s allegations, as pled, do not support an allegation of impropriety or a conclusion that sufficient illegal votes were cast to change or place in doubt the result of the election.”
The Georgia Supreme Court denied an emergency appeal without comment.
Michigan:
Donald J. Trump for President v. Benson (dealing with the opportunity for an election inspector of each political party to be present at each absent voter counting board): https://electioncases.osu.edu/case/donald-j-trump-for-president-v-benson/
From a Court of Claims Judge’s decision finding evidentiary problems as well as mootness:
“Accordingly, and even assuming the requested relief were available against the Secretary of State—and overlooking the problems with the factual and evidentiary record noted above—the matter is now moot, as it is impossible to issue the requested relief.”
The court of appeals agreed with the court of claims that the matter was moot. Without comment, the Michigan Supreme Court denied an application for leave to appeal.
Nevada:
Law v. Whitmer (election contest): https://electioncases.osu.edu/case/law-v-whitmer/
From a Carson City District Judge’s decision dismissing the case:
“The Contestants failed to meet their burden to provide credible and relevant evidence to substantiate any of the grounds set forth in NRS 293.410 to contest the 2020 General Election.”
From the Nevada Supreme Court opinion affirming the district court:
“The district court entered a 34-page order, setting forth its findings of fact, conclusions of law, and evidentiary rulings. The district court’s order is attached. To prevail on this appeal, appellants must demonstrate error of law, findings of fact not supported by substantial evidence, or an abuse of discretion in the admission or rejection of evidence by the district court. * * * We are not convinced they have done so. In particular, appellants have not demonstrated any legal error in the district court’s application of NRS 293.410(2)(c). We also are not convinced that the district court erred in applying a burden of proof by clear and convincing evidence, as supported by the cases cited in the district court’s order. And, in any event, the district court further determined that appellants had not met their burden even if it applied a lesser standard. Finally, the district court’s order thoroughly addressed the grounds asserted in the statement of contest filed by appellants and considered the evidence offered by appellants even when that evidence did not meet the requirements under Nevada law for expert testimony[.]”
Pennsylvania:
The four cases below addressed technical problems with absentee and mail-in ballots, access by political party observers, etc. rather than allegations of misconduct or fraud. All of these cases are now at the U.S. Supreme Court on petitions for writ of certiorari after decisions by the Pennsylvania Supreme Court.
In Re: Canvass of Absentee and Mail-In Ballots: https://electioncases.osu.edu/case/in-re-canvass-of-absentee-and-mail-in-ballots/
From the Pennsylvania Supreme Court’s decision: “Here we conclude that while failures to include a handwritten name, address or date in the voter declaration on the back of the outer envelope, while constituting technical violations of the Election Code, do not warrant the wholesale disenfranchisement of thousands of Pennsylvania voters.”
In Re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 Election: https://electioncases.osu.edu/case/donald-j-trump-for-president-v-bucks-county-board-of-elections/
From a Pennsylvania Commonwealth Court Judge’s decision: “Importantly, the Court must point out that there are absolutely no allegations of any fraud, impropriety, misconduct, or undue influence, that anyone voted who was not eligible to vote, or that the secrecy of the ballots cast was jeopardized. For these reasons, the decision of the Court will be applied prospectively, and the 69 ballots will not be invalidated.” [dealing with 69 ballots whose secrecy envelopes were not sealed].
The Pennsylvania Supreme Court opted not to hear an appeal.
In re: Canvassing Observation/Donald J. Trump for President, Inc. v. Boockvar: https://electioncases.osu.edu/case/in-re-canvassing-observation/
From the Pennsylvania Supreme Court’s decision: “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.”
In re: November 3, 2020 General Election: https://electioncases.osu.edu/case/in-re-november-3-2020-general-election/
From the Pennsylvania Supreme Court’s decision: “For all of the aforementioned reasons, we grant the Secretary’s petition for declarative relief, and hold that county boards of elections are prohibited from rejecting absentee or mail-in ballots based on signature comparison conducted by county election officials or employees, or as the result of third-party challenges based on signature analysis and comparisons.” [decided pre-election]
Pennsylvania case filed by Rep. Mike Kelly and others:
Kelly v. Pennsylvania: https://electioncases.osu.edu/case/kelly-v-commonwealth/
From the Pennsylvania Supreme Court’s decision:
“[W]e hereby dismiss the petition for review with prejudice based upon Petitioners’ failure to file their facial constitutional challenge in a timely manner. Petitioners’ challenge violates the doctrine of laches given their complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment. It is well-established that “[l]aches is an equitable doctrine that bars relief when a complaining party is guilty of want of due diligence in failing to promptly institute an action to the prejudice of another.”
“The want of due diligence demonstrated in this matter is unmistakable. Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77. At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth. Thus, it is beyond cavil that Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from Petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.”
The U.S. Supreme Court denied an application for emergency relief without comment.
Federal case filed by the Trump campaign in Pennsylvania:
Donald J. Trump for President v. Boockvar: https://electioncases.osu.edu/case/donald-j-trump-for-president-inc-v-boockvar/
From Judge Brann’s decision in the District Court:
“None of these allegations (or the others in this section) claim that the Trump Campaign’s watchers were treated differently than the Biden campaign’s watchers. Simply alleging that poll watchers did not have access or were denied access to some areas does not plausibly plead unequal treatment. Without actually alleging that one group was treated differently than another, Plaintiffs’ first argument falls flat.”
“Plaintiffs’ interpretation of Bush v. Gore would broaden the application of that case far beyond what the Supreme Court of the United States endorsed. In Bush, the Supreme Court stopped a recount of votes in Florida in the aftermath of the 2000 Presidential Election. Despite Plaintiffs’ assertions, Bush does not stand for the proposition that every rule or system must ensure uniform treatment. In fact, the Supreme Court explicitly said so, explaining: “[t]he question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.”
From the Third Circuit opinion authored by Judge Bibas:
“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.
“The Trump Presidential Campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the Campaign “doesn’t plead fraud. . . . [T]his is not a fraud case.” Instead, it objects that Pennsylvania’s Secretary of State and some counties restricted poll watchers and let voters fix technical defects in their mail-in ballots. It offers nothing more.
“This case is not about whether those claims are true. Rather, the Campaign appeals on a very narrow ground: whether the District Court abused its discretion in not letting the Campaign amend its complaint a second time. It did not.
“Most of the claims in the Second Amended Complaint boil down to issues of state law. But Pennsylvania law is willing to overlook many technical defects. It favors counting votes as long as there is no fraud. Indeed, the Campaign has already litigated and lost many of these issues in state courts.
“The Campaign tries to repackage these state-law claims as unconstitutional discrimination. Yet its allegations are vague and conclusory. It never alleges that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes. And federal law does not require poll watchers or specify how they may observe. It also says nothing about curing technical state-law errors in ballots. Each of these defects is fatal, and the proposed Second Amended Complaint does not fix them. So the District Court properly denied leave to amend again.
“Nor does the Campaign deserve an injunction to undo Pennsylvania’s certification of its votes. The Campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.”
Wisconsin:
Trump v. Biden (appeal of recount determinations in Milwaukee and Dane Counties): https://electioncases.osu.edu/case/trump-v-biden/
From the Circuit Court Judge, reading his decision from the bench (available starting at 1:38:25 at https://www.youtube.com/watch?v=O5WcQpfGEXU):
“The petitioner/appellants have not demonstrated that an erroneous interpretation of Wisconsin early voting laws happened here. And in the complaint there really is no allegation here of widespread fraud. That’s not the issue. There is no credible evidence of any misconduct or wide-scale fraud. At issue here simply is whether or not the recount occurred in compliance with the Wisconsin election laws.”
From the Wisconsin Supreme Court’s decision:
“We conclude the Campaign is not entitled to the relief it seeks. The challenge to the indefinitely confined voter ballots is meritless on its face, and the other three categories of ballots challenged fail under the doctrine of laches.”
A petition for writ of certiorari is pending at the U.S. Supreme Court.
Federal case filed by the Trump campaign in Wisconsin:
Trump v. Wisconsin Elections Commission: https://electioncases.osu.edu/case/trump-v-wisconsin-elections-commission/
From the District Judge’s decision:
“Plaintiff’s Electors Clause claims fail as a matter of law and fact. The record establishes that Wisconsin’s selection of its 2020 Presidential Electors was conducted in the very manner established by the Wisconsin Legislature, ‘[b]y general ballot at the general election.’”
From the Seventh Circuit’s decision:
“T]he errors that the President alleges occurred in the Commission’s exercise of its authority are in the main matters of state law. They belong, then, in the state courts, where the President had an opportunity to raise his concerns. Indeed, the Wisconsin Supreme Court rejected his claims regarding the guidance on indefinitely confined voters, see Trump v. Biden, 2020 WI 91 ¶ 8 (Dec. 14, 2020), and declined to reach the rest of his arguments on grounds of laches. For our part, all we need to say is that, even on a broad reading of the Electors Clause, Wisconsin lawfully appointed its electors in the manner directed by its Legislature.”
A petition for writ of certiorari is pending in the U.S. Supreme Court.