11/05 Daily Update: Ensuring Every Legal Vote is Counted

Published: 11.5.20

It’s been two days since polls closed. We don’t know the final results yet, but democracy means counting every legal vote. That process can take time.

Yesterday, TIME quoted VPP National Director Joanna Lydgate in an article about the President’s incorrect and premature claim of victory. Read the story here.Today, the VPP hosted a press briefing with legal experts and former elected officials on counting every legal vote and the latest on the ground in states like Arizona and Michigan, where groups of demonstrators have gathered outside counting facilities. The briefing featured Vanita Gupta, President and CEO of The Leadership Conference on Civil and Human Rights,and VPP Advisory Board Members Joyce Vance, former United States Attorney for the Northern District of Alabama, Grant Woods, former Attorney General of Arizona, and Peter Koutoujian, Sheriff of Middlesex County, Massachusetts. The recording of the press briefing is available here.

Below is message guidance on protecting the count. Here is your update:

Social Media

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National News

USPS Slowdowns: A federal district court judge today continued his inquiry into whether the United States Postal Service has failed to deliver ballots. In a hearing this afternoon, Judge Sullivan ordered USPS to do twice-daily sweeps of mail processing centers today and tomorrow to collect and deliver any outstanding ballots to North Carolina and Pennsylvania by 5 pm on Friday, 11/6. At stake, according to evidence provided to Judge Sullivan, are at most 1,359 ballots in PA and 2,535 ballots in NC.

Federal Involvement in the Election: Yesterday, Massachusetts Attorney General Maura Healey decried news that the federal Department of Justice had released unprecedented legal guidance allowing armed federal agents at ballot-counting locations. “Elections are a state matter,” General Healey explained, “and we have authority as state officials over anyone trying to enter locations where ballots are being counted. Anything else is a radical reinterpretation of the law. States can handle elections, and we will ensure the people decide the outcome.” Today, DOJ appeared to walk back its new position, explaining that it intended only to indicate that federal law enforcement officials are available to help their state and local counterparts. Read more from the New York Times here.

Voter Suppression: Yesterday, MSNBC published an opinion piece from VPP Advisory Board member and former United States Attorney for the Northern District of Alabama Joyce Vance, reminding voters that as ballot counting continues, Americans should not lose focus on systematic attempts to suppress the vote. Read the piece on MSNBC here.

State News

  • Arizona: On Wednesday evening, outside a ballot-processing center in Maricopa County, AZ, more than 100 Trump protesters gathered, galvanized by an unsubstantiated  claim that election workers were throwing out ballots if voters used Sharpies to mark their choices. The controversy, dubbed “SharpieGate,”  has been fact-checked and debunked by Arizona elections officials, who reassured voters that ballots marked in Sharpie ink will be counted. See the Legal Corner below for related SharpieGate litigation.

  • Georgia: This afternoon, Georgia Secretary of State Brad Raffensperger announced that only 61,000 ballots remain to be counted in the state’s close presidential race. As of this evening at 9:00pm, just over 16,000 votes were outstanding.

  • Nevada: Attorney General Aaron Ford appeared on ABC News to share election updates in Nevada, and on BBC World to explain how the state has worked to ensure a free and fair election as counting continues. Meanwhile, this afternoon, officials in Nevada announced that the state’s count might end on Saturday or Sunday of this week. Read more from USA Today here.

  • North Carolina: This afternoon,  North Carolina election officials announced that about 40,000 provisional ballots were left to review in the state. Read more from the Raleigh News Observer here.

Legal Corner

Today, Pennsylvania remained the epicenter of post-Election Day litigation, as the Trump campaign continued scattershot litigation that has yet to raise any serious questions about the integrity of the count. The VPP’s full litigation tracker is here. Key developments today included:

Case(s) Dismissed: Several cases aimed at stopping the count were quickly dismissed today. In Georgia, the Trump campaign claimed that election workers in Chatham County had mixed 53 late-arriving ballots with validly-cast ballots. But the county court dismissed the petition after the plaintiffs failed to substantiate their claim at a hearing. The case is In re: Enforcement of Election Laws and Securing Ballots Cast or Received After 7:00PM on November 3, 2020, No. SPCV 20-00982 (Chatham County Superior Court). In Michigan, a state court judge rejected a Trump campaign request to stop mail-in ballot counting until campaign observers are granted “meaningful access” to observe the counting process. The case is Donald J. Trump for President, Inc. v. Benson, No. 20-225-MZ (Mich. Ct. Cls.). Finally, in Pennsylvania, a Republican congressional candidate withdrew his request to temporarily restrain Montgomery County officials from contacting voters with deficient ballots and permitting them to cure deficiencies. The case is Barnette v. Lawrence, No. 20-cv-5477 (E.D. Pa.).

Back at the Supreme Court: Shortly before Election Day, a shorthanded Supreme Court refused a Pennsylvania Republican Party request to immediately bar the state from counting any mail-in ballots received after November 3. The Pennsylvania Supreme Court had earlier authorized counting ballots received until 5pm on November 6. Now the Trump campaign has sought to intervene, with the aim of convincing the Court to hear the merits of the case and throw out any ballots arriving after November 3. Today the state filed its response opposing the motion to intervene. The case is Republican Party of Pennsylvania v. Boockvar, No. 20-542 (U.S.).

Sharpiegate!: Avoter claims that she was given a Sharpie marker to fill out her ballot. She says the ballot was then discarded. She sued, seeking to be allowed to “observe the counting of ballots and the adjudication of voter intent” in Maricopa County, Arizona’s largest. The case is pending, with the Arizona Democratic Party intervening to protect the ongoing absentee ballot count. The case is Aguilera v. Fontes, No. CV2020-01408 (Maricopa County Superior Court).

11/05 Messaging Guidance on Counting Every Vote

  • Right now, the focus is on making sure every legal vote is counted.
  • Just days after an election with record turnout, we have the vast majority of votes counted.
  • State leaders and election officials are fairly and accurately counting every legal vote.
  • We will finish the job, get a full and fair count of every legal vote, and the voice of the people will be heard.
  • The state officials responsible for running elections have demonstrated their ability to see us through a free and fair election and make sure every legal ballot is counted.
  • Here’s the bottom line: the people will decide the outcome of this election, not the court, not any candidate or party. We will not be distracted. The will of the people will be protected.