12/8 Orders in the Courts

Published: 12.8.20

Today is “Safe Harbor” Day, bringing us one step closer to the Electoral College vote for President-elect Joe Biden on December 14.

A destined-to-fail legal gambit from Texas asks the U.S. Supreme Court to throw out the voting results in four other states.  Meanwhile, SCOTUS rejected a challenge to Biden’s Pennsylvania win. Read more in our legal corner below.

Former two-term Governor of New Jersey Christine Todd Whitman, along with VPP outside counsel Norm Eisen and National Director Joanna Lydgate co-authored a CNN op-ed today arguing that, although Trump’s ongoing attacks on the American election do not pose a risk to Biden’s victory, they could negatively impact the long-term health of our democracy if left unchecked.

Meanwhile, the VPP’s new national TV ad airing on Fox News attracted media attention today, with Lydgate telling Newsweek : “As a trusted ally of the President and a trusted voice to his supporters, Attorney General Barr telling the truth about the 2020 election–that it was fair and accurate–matters.”

National Update

An Extraordinary Attempt at Subversion: President Trump called the speaker of the Pennsylvania House of Representatives twice during the past week to make an unprecedented and undemocratic request for help reversing his loss in the state. Trump asked the state legislator to muster his colleagues to override the popular will in a state that Joe Biden won by more than 80,000 votes. The calls reflect a broadening pressure campaign by the President and his allies to try to subvert the 2020 election result. Read more here.

Trump Assumed, Judges Demurred: The Trump campaign claimed their lawsuits aimed at subverting the 2020 election would be substantiated, if only judges were allowed to hear the cases. Yet judges in state and federal courts across the country have repeatedly rejected Trump’s unfounded claims of widespread voter fraud, underscoring not only the futility of the President’s brazen attempt to sabotage the people’s will but also the role of the courts in checking his unprecedented efforts to stay in power. Read more here.

Lawyers Unite: Arguing that “a license to practice law is not a license to lie,” nearly 1,500 lawyers issued a letter on Monday calling on bar associations across the country to investigate and, if needed, penalize the members of President Trump’s legal team, including the architect of his post-election strategy, Rudolph W. Giuliani. Read more here.

State Updates

Michigan: Attorney General Dana Nessel joined CNN last night and again this morning, to decry the threatening armed mob that gathered outside the home of Michigan Secretary of State Jocelyn Benson this weekend. Nessel said: “The statements the President has continued to make not only undermine[] people’s confidence and faith in our system of elections, but at this point, [they] undermin[e] the safety of those who administer our elections.” Catch the clip of AG Nessel on CNN New Day here.

Minnesota: Trump’s wild claim of a vast conspiracy to deprive him of a second term has created an unprecedented stress test on the U.S. election system and the courts, according to Minnesota Attorney General Keith Ellison. But, so far, our courts and election systems are passing the test: “This shows the courts are still an independent institution,” said Ellison. “One of the hallmarks of an authoritarian state is having no press freedom and the courts are lapdogs for whoever is in power. We can say that’s not true here.” Read more here.

Legal Corner

Fun While It Lasted: Late this afternoon, the United States Supreme Court denied a request for emergency relief in Pennsylvania Republicans’ last hope, such as it was, for a game-changing federal litigation win. The case is Kelly v. Pennsylvania, 20A98 (U.S.)

On November 21, a group of Pennsylvania Republicans led by named plaintiff Michael Kelly, a U.S. Congressman, sued the state. They alleged that Act 77, a Republican-driven state law that authorized universal mail-in voting, violated the state constitution. The remedy, the plaintiffs suggested, was to throw out millions of mail-in votes, upending the entire election. But the state Supreme Court held that plaintiffs could not sandbag the electorate by delaying their challenge for more than a year after the legislation passed.

From this rejection, the plaintiffs sought review at the United States Supreme Court. One of many problems for them: The state court denied their claims based on state law grounds, and the United States Supreme Court only has the power to rule on federal claims. Tonight, without noted dissent, the U.S. Supreme Court refused plaintiffs’ emergency request to override  Pennsylvania’s popular vote.

Still pending is a Republican request that the Supreme Court review the constitutionality of Pennsylvania’s counting ballots received during a post-Election Day grace period. That case is Republican Party of Pennsylvania v. Boockvar, 20-542 (U.S.). But only about 10,000 ballots are at stake there, and Joe Biden won Pennsylvania by more than 80,000 votes even without them.

Cut Off One Head: The same day that the Supreme Court refused to step in on the frivolous Kelly case, it was presented with another one: Texas v. Pennsylvania, 22O155 (U.S.).

This is a lawsuit, brought directly in the Supreme Court, in which the state of Texas sues four states that voted for Joe Biden: Pennsylvania, Georgia, Michigan, and Wisconsin. Suits brought by states against each other must be filed directly in the Supreme Court, which can hear the suits at its discretion.

Texas claims that alleged (unproven and unprovable, because false) voting problems in those states somehow injure Texas. But even if there was anything to those allegations, they should be brought in the courts of those states. And, of course, they have been – and they have been, repeatedly, rejected.

Perhaps related: The hydra was an evil mythological beast with many heads. Every time one head was cut off, two heads grew back. To kill it, you had to behead it and then cauterize its bleeding stump with fire. This took time, but it was worth doing, and (one imagines) somewhat satisfying, too. And it was eventually done.

Mythological Beasts, Part 2: Yesterday, federal courts in Georgia and Michigan rejected the feverish conspiratorial plotlines of two lawsuits in the direct-to-video series known as the “Kraken.” Today, courts in Wisconsin and Arizona set the remaining two suits on the path to rejection, too.

In Arizona, a federal judge heard arguments on the defense motion to dismiss that state’s Kraken suit, promising a decision by tomorrow night. The case is Bowyer v. Ducey, 20-2321 (D. Ariz.). Meanwhile, in Wisconsin, the judge denied plaintiffs’ request for an evidentiary hearing, and an end to briefing on the defense motion to dismiss by tomorrow afternoon. The case is Feehan v. Wisconsin Elections Commission, 20-1771 (E.D. Wis.).

The Arizona Supreme Court Has Seen Enough: This evening, the Arizona Supreme Court unanimously affirmed a lower court decision dismissing the state Republican party’s election contest lawsuit.

Joe Biden won Arizona by more than 10,000 votes. After the election was certified for Biden, state Republican chair Kelli Ward filed a formal election contest lawsuit seeking to reverse the popular will.  A trial court took two days of testimony and then dismissed her suit, finding “no misconduct, no fraud, and no effect on the outcome of the election.” That was Friday, 12/4.

The state Supreme Court then heard an expedited appeal, and this evening they affirmed, deciding that “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 decision came in Ward v. Jackson, CV-20-0343 (Az.).

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