11/09 Daily Update: Preparing for Challenges to Election Results; the Threat of DOJ Interference

Published: 11.9.20

After working successfully to protect the vote and the count, the Voter Protection Program is moving into the third phase of its work: protecting the results and ensuring that the voice of the people is respected. Today, the U.S. Attorney General issued a memorandum walking back 40-year-old guidance that forbade federal prosecutors from launching public voting-related investigations until results are certified. Below is messaging guidance on that memo. Here’s your update:

Social Media

Make sure you’ve followed and set alerts for the Voter Protection Program on Twitter to stay updated on the latest voter protection news.

Additionally, here you’ll find our most recent social media toolkit that reflects our latest messaging and guidance.

National News

  • DOJ Memorandum: On Monday, U.S. Attorney General William Barr issued a memorandum walking back long-standing DOJ policy against overt federal law enforcement action on election fraud allegations “until after the outcome of the election allegedly affected by the fraud is certified.” That 40-year-old policy ensured that the DOJ could not interfere with ongoing elections. The policy authorizes federal prosecutors to “pursue substantial allegations of voting and voting tabulation irregularities prior to the certification of elections… if there are clear and apparently-credible allegations of irregularities that, if true, could potentially impact the outcome of a federal election in an individual State.” The VPP previously  released briefing materials on the importance of the federal government non-interference in elections. Below is messaging guidance on this new memo.

  • Misleading Claims of Election Fraud: On Saturday, major news outlets called the presidential election for President-elect Biden. President Trump has not only refused to concede, he and his campaign continue to falsely claim that Trump won re-election. The Houston Chronicle fact-checked Trump’s false claims of election fraud. Following these baseless claims of fraud, the Trump campaign also publicized a voter fraud hotline, which has reportedly received numerous prank calls. Read more from The Hill here.

  • Election Litigation: According to the Wall Street Journal, President Trump and his supporters have pledged to intensify legal efforts to contest the presidential election, though the lawsuits filed so far are very unlikely to change the outcome. However, even President Trump’s inner circle of advisers disagree about the utility of pursuing election lawsuits. Some of his allies have recognized that the legal efforts will not result in a win for the President. Read more from Bloomberg here.

  • Vote Recount & Conceding: During a press conference in Philadelphia this weekend after the victory of President-elect Joe Biden, Rudy Guiliani said that President Trump would not concede. Giuliani claimed, without evidence, that ballot tampering occurred in Pennsylvania. Other sources close to the White House said the President would concede once all legal efforts are exhausted. The Trump Campaign is planning campaign-like recount rallies in contested battleground states like Arizona, Georgia, and Pennsylvania.

  • State Leaders’ Involvement in Election Challenges: Today, several GOP state elected officials announced support for the Trump campaign’s legal challenges to the election outcome. Ohio Attorney General David Yost filed an amicus brief in support of the Pennsylvania GOP’s request that the U.S. Supreme Court throw out almost 10,000 mail-in ballots; in the same case, Missouri officials led a  coalition of ten states in filing their own similar amicus brief. Over the weekend, without citing evidence, the Michigan legislature voted to subpoena documents from the Michigan elections bureau pertaining to the election. GOP lawmakers in the state recognize that claims of irregularities are “anecdotal” but will still proceed. Read more from The State News here.

State Updates

Michigan: Over the weekend, the Associated Press reported the increasingly regular presence of armed individuals outside of vote-counting centers in states with open-carry laws like  Arizona, Michigan, and Nevada. The article quoted a statement made by Attorney General Dana Nessel decrying the carrying of weapons at polling places to intimidate voters. Read more from Penn Live here.

Minnesota: In response to Trump supporters’ baseless claims of voter fraud, Minnesota Public Radio reminds readers that high voter turnout, especially in urban Midwestern areas, is not a sign of voter fraud. The article dives into the specifics of Minnesota’s voter turnout data across the state and debunks baseless claims of voter fraud.

Pennsylvania: The Republican City Commissioner of Philadelphia, Al Schmidt,  whose office is in charge of vote counting, has reported that staff have received death threats since the ballot counting began last week. Read more from The Hill here.

Legal Corner

Today, President Trump’s camp amped up litigation aimed at preventing battleground states from finalizing and certifying the count. A full rundown of post-Election Day litigation is here. Highlights from today included:

The Kitchen Sink: Close behind a floundering shoal of penny-ante lawsuits challenging fringe aspects of Pennsylvania’s election system, Trump this afternoon filed an 85-page behemoth complaint asking a federal court to block the state from certifying its final count. But bigger isn’t necessarily better. The complaint, brought in Pennsylvania’s Middle District, claims that the state somehow violated Trump’s rights by processing mail-in ballots and in-person ballots differently – even though those procedures were clear and well-known to all candidates and could have been challenged before the election. The case is Donald J. Trump v. Boockvar, 20-02078 (M.D. Pa.).

The Rise and Fall of Sharpie: Promises of permanence to the contrary, Sharpiegate faded even further today. The case made its mark on 11/6, when a voter filed suit claiming that her in-person ballot hadn’t been counted because she had used a Sharpie to fill it out. That case – affectionately dubbed “Sharpiegate I” by lawyers and stationers alike – was Aguilera v. Fontes, No. CV2020-014083 (Maricopa County Superior Court). The plaintiff dismissed the case the very next day, when the newer and bigger “Sharpiegate II” was filed: Donald J. Trump for President Inc. v. Hobbs, No. CV2020-014248 (Maricopa County Superior Court). This case, now brought by the Trump campaign, claimed that the scanners used in Maricopa County had systematically misread Sharpie votes as “overvotes” – spoiled ballots with more than the maximum number of selections filled in.

At a hearing today, the first order of business was the permanent erasure of the Sharpiegate I case: the trial court refused to allow the plaintiff from Aguilera v. Fontes to intervene in Sharpiegate II, since she had voluntarily given up her shot at relief when she dismissed her own case. The judge then heard that Sharpiegate was hardly a systemic problem: In all of Maricopa County, 155,850 votes were cast on Election Day, but there were only 180 overvotes in the presidential race. The court ordered briefing tomorrow, with an evidentiary hearing to follow on Thursday.

Message Guidance: DOJ Memo

  • This isn’t a law enforcement policy, it’s a partisan PR stunt.
  • The Department of Justice has nothing to do with counting and certifying our elections. That’s the job of state and local officials.
  • The voters decided the winner of this election – not the President, not Attorney General Barr.
  • Our election was safe, free, and fair. There’s no evidence of any wrongdoing here—and not even Bill Barr on a Trump-sponsored fishing expedition will find any.
  • Under presidents of both parties, the DOJ has maintained independence and a policy of noninterference until the results of elections are certified.
  • Our state and local leaders are doing an extraordinary job of accurately and fairly counting every legal vote. They must be free to certify the results without partisan federal interference.
  • America voted, in record numbers. Every legal vote is being counted, fairly and accurately. The results are clear. State officials  are not going to let anyone interfere with the will of the people.