12/7 Closing in on the Electoral College Vote

Published: 12.7.20

December 14, the day electors meet to cast their votes, draws nearer, and President Trump’s efforts to overturn the will of the people continue to fail. Election-denying “Kraken” attorney Sidney Powell suffered losses in two states, with judges in Michigan and Georgia ruling against her lawsuits challenging President-elect Biden’s wins in those states.

In case you missed it: The USA Today op-ed penned by former Massachusetts Governor Bill Weld, VPP outside counsel Norm Eisen, and VPP National Director Joanna Lydgate was featured this Saturday on MSNBC with Ali Velshi during a discussion on U.S. Attorney General Bill Barr. You can see the clip here.

National Update

The Safe Harbor Date: December 8 is the “safe harbor” date — a way-station on the path toward President-elect Joe Biden’s inauguration.

To understand why the safe harbor date matters, it’s important to understand when it matters. Federal law has rules to help Congress decide what to do when a state sends multiple, competing slates of electors. One of those rules involves the “safe harbor” date. The rule gives a bump in status to a slate of electors that is finalized at least six days before the electoral college meets. This year, the “safe harbor” date is December 8.

But, right now, no state has competing slates of electors. Instead, key states — like Arizona, Michigan, Georgia, Wisconsin, Nevada, and Pennsylvania — have certified a single slate of electors for President-elect Biden, who won the popular vote in those states. Safe harbor or not, those Biden electors are the electors who will vote on December 14 and whose votes Congress will count on January 6.

Armed Threats in Michigan: About two dozen armed protesters gathered and shouted insults outside of Secretary of State Jocelyn Benson’s home Saturday night, where she was with her four-year-old son. The protestors falsely accused Benson, who is Michigan’s chief election officer, of ignoring widespread voter fraud. “They shouted baseless conspiracy theories about the election, and in videos uploaded to social media, at least one individual could be heard shouting ‘you’re murderers’ within earshot of her child’s bedroom,” Michigan Attorney General Dana Nessel and Wayne County Prosecutor Kym Worthy said in a joint statement on Sunday. “This mob-like behavior is an affront to basic morality and decency.” Read more here.

Loeffler Laments: In a televised debate on Sunday night, Georgia Senator Kelly Loeffler declined to say that President Trump had lost the election, arguing instead that the president had the right to pursue “every legal recourse available” to prove his baseless assertion that the vote in Georgia was rigged against him. Of course, Trump has publicly pursued extralegal avenues to steal a win in Georgia, trying to convince officials to violate state law and override the popular vote. Read more here.

State Updates

Georgia: On Monday, Georgia Secretary of State Brad Raffensperger recertified the state’s election results, confirming President-elect Biden’s win again. Georgia has now counted its presidential ballots three times. The most recent recount was requested by President Trump’s campaign, which continues to dispute the state’s results. Read more here.

Legal Corner

Every day in December has been a good day for election justice and a bad day for election deniers’ frivolous lawsuits. Today, Sidney Powell’s set of four matching captioned conspiracy theories, the “Kraken” suits, were cut in half; two of the three remaining Georgia state court suits were dismissed; and another handful of dead-ender cases slithered toward their inevitable conclusion.

We’re going to try to get through this update without a single Kraken pun.

Brace yourselves:

Georgia State Cases Dismissed: The day began with three state cases on the books challenging Joe Biden’s Georgia win, and the state’s recount still technically ongoing. The day ended with the recount certified – cementing Biden’s win in the state – and two of the three cases dismissed.

Wood v. Raffensberger [sic], 2020-CV-342959 (Ga. Super.) was an election contest brought by the impossibly-un-self-aware-or-else-horrifically-Orwellian “Amistad Project” of the conservative Thomas More Society. The project initially filed lawsuits in five states seeking to disenfranchise African-American voters by alleging fraud and improprieties in largely Black areas. One state fewer, for now.

Meanwhile, Trump v. Raffensperger, _____ (Ga. Super.), an election contest brought by Trump himself, didn’t get far. It was dismissed today, shortly after filing, because Trump’s lawyers didn’t fill out the paperwork or pay the filing fee.

So far so good. No puns.

Gluttony for Punishment: Trump’s formal election contests in Nevada and Arizona, which were rejected by state trial courts last week, moved towards their inevitable rejections in their respective states’ supreme courts, too.

On Friday, 12/4, a Nevada trial court systematically dismantled claims of election fraud and irregularities before concluding that “there is no credible or reliable evidence that the 2020 General Election in Nevada was affected by fraud.” Today, the Trump campaign filed a notice of appeal on that decision to the state Supreme Court. Soon that appeal too will be gone.

Also on Friday, an Arizona judge ended state Republican chair Kelli Ward’s two day election contest hearing with a definitive announcement that “[t]he Court finds no misconduct, no fraud, and no effect on the outcome of the election.” The Arizona Supreme Court will hear Ward’s appeal on an expedited basis, but without oral argument.

We’ve done well, but the hardest part lies ahead. Let’s do it:

Sidney Powell is 0-2: Two of cast-out prodigal attorney Sidney Powell’s four “Kraken” lawsuits met an early demise this morning, with all signs pointing to the survivors’ following them in the next few days. You might almost say that the courts… hit* down hard today on Powell. You might further say that Powell’s allegedly… very good** team of lawyers leave something to be desired.

First, Michigan: Overnight,a federal judge in the Eastern District of Michigan denied Powell’s request to block Joe Biden’s win in the state. Judge Linda Parker found five separate reasons why Powell’s plaintiffs lacked standing to sue – and, even if they had standing, she noted, they would lose on the merits. “[T]his lawsuit seems to be less about achieving the relief Plaintiffs seek,” Judge Parker wrote, “and more about the impact of their allegations on People’s faith in the democratic process and their trust in our government.” She concluded: “The people have spoken.” The case is King v. Whitmer, 20-13134 (E.D. Mich.).

Next, Georgia: This morning,a federal judge in the Northern District of Georgia did Judge Parker one better, throwing out Powell’s Georgia case entirely. Judge Timothy Batten, Sr., got … moving very quickly*** on the case, ruling from the bench after hearing oral argument. Judge Batten dismissed the case after finding that the plaintiffs were in the wrong court; that they had no standing to sue; and that he lacked the power to decertify an election that reflects the popular will. The case was Pearson v. Kemp, 20-4809 (N.D. Ga.).

Third, Arizona and Wisconsin: Meanwhile, small… breaks**** were already appearing in the facades of Powell’s remaining cases. In Wisconsin, the federal judge set a conference for tomorrow after Powell’s team first disclaimed any desire for oral argument and then abruptly reversed themselves. Feehan v. Wisconsin Elections Commission, 20-1771 (E.D. Wis.). And in Arizona, the judge set a hearing for tomorrow on the defense motion to dismiss, deferring the plaintiffs’ request to present evidence to a later motion hearing that, in all likelihood, will never come. That case, while it lasts, is Bowyer v. Ducey, No. 2:20-cv-02321 (D. Ariz.).

Ok! We did it! No puns!*****

* cracked

** crack

*** cracking

**** cracks

***** sorry

Messaging Guidance on Harassment, Threats and Potential Violence

  • We strongly support the right to peacefully protest, but nobody has the right to threaten public officials with violence for carrying out their oath of office.
  •  As state leaders and law enforcement officers, we want to be really clear: We’re going to keep our election officials safe. We’re going to protect them. We’re going to prosecute anyone who illegally threatens them.
  • Our democracy relies on the state and local officials who administer our elections. They are the keepers of our democracy. We owe them an enormous debt of gratitude. And everyone – from both parties – should have their backs.
  • Threats against election officials are threats to our democracy. They are threats to every citizen’s right to vote. I will not tolerate it.
  • This isn’t a partisan issue, and we can’t echo strongly enough what other leaders have said on both sides of the aisle: This has to stop.

Messaging Guidance on Safe Harbor Date

  • States have certified 288 electoral votes for President-Elect Biden, with the remainder of the full 306 expected shortly. Many certifications have been logged by the archivist and published on his website.

  • When votes are conclusively certified before the “Safe Harbor” date under federal law — this year December 8 — they are entitled to the presumption of finality, and that is what we have here.

  • There is no longer any question at all: President-elect Biden is going to be chosen by the electoral college on December 14, Congress is going to accept that on January 6, and the President is going to be sworn in on January 20.

  • Trump’s and his allies’ few remaining meritless litigation cases are not going to change that, and are going to be thrown out like the cases that have come before.

Key Events and Deadlines

For ongoing tracking of progress in battleground states, check our resource here. For a calendar of key upcoming events, check out our timeline here.

Social Media

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