12/9 Legal Desperation

Published: 12.9.20

As his frivolous lawsuits and undemocratic pressure tactics failed around the country, President Trump embraced Texas’ destined-to-fail legal gambit asking the U.S. Supreme Court to overturn presidential election results in Georgia, Michigan, Pennsylvania, and Wisconsin, which would erase millions of votes from the four battleground states.

The VPP’s Advisory Board Members pushed back. Former two-term Governor of New Jersey Christine Todd Whitman said the lawsuit led by the Texas AG “is a violation of AG Paxton’s oath to defend the constitution,” while former Arizona Attorney General Grant Woods stated it will “have no effect on the outcome of the election, and it’s an argument he and others will not win.”

National Update

The President Wants In: On Wednesday, President Donald Trump asked to intervene in Texas Attorney General Ken Paxton’s Supreme Court lawsuit, which seeks to invalidate millions of votes cast in four states that went for President- elect Joe Biden: Georgia, Michigan, Pennsylvania, and Wisconsin. The suit seeks an unprecedented remedy — the erasure of the popular will at a massive scale — and makes an astonishing and legally baseless claim: that one state (Texas) somehow has a legally-cognizable interest in the conduct of elections in other states, and can sue on that basis. If so, every future national election can become a legal contest among states, not just among candidates. The lawsuit is facing criticism from fellow Texans, including former Attorney General and current U.S. Senator John Cornyn, who questioned the lawsuit’s legal theory and noted “why would a state, even such a great state as Texas, have a say so on how other states administer their elections?”

Jumping on the Bandwagon: Attorneys general in 17 states won by Trump filed an amicus brief asking the Supreme Court to take up AG Paxton’s lawsuit seeking this shockingly anti-democratic outcome. The amicus brief was signed by Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia. Read more here.

State Updates

Arizona: The Arizona “Kraken” lawsuit saw defeat today (more on that in the legal corner below). In response, Secretary of State Katie Hobbs released a statement saying, “the dismissal of the lawsuit marks a turning point in our democratic process.”

Michigan: Attorney General Dana Nessel joined MSNBC this morning to discuss the new Texas lawsuit and noted that baseless claims of fraud are “really destroying the country and posing a great security threat to many, many public officials.” Watch the clip of AG Nessel on MSNBC Morning Joe here.

Legal Corner

In five days – on December 14 – 306 electors will vote for Joe Biden as our next president. In the meantime, federal and state courts are dismissing the remaining lawsuits that seek to impose Donald Trump’s presidency by judicial fiat, in contravention of the will of the voters.

Today’s developments include:

The Board Is Clear in Arizona: This evening, Arizona federal Judge Diane Humetawa dismissed the third installment in the ill-fated “Kraken” lawsuit series brought by conspiracy theorist Sidney Powell.

Kraken series fans — whose Venn diagram with car crash rubberneckers is a circle — will remember that Powell brought suits in Arizona, Georgia, Michigan, and Wisconsin. All four allege that a Hugo Chavez-designed software system, manipulated by Iran and China, somehow corrupted votes in U.S. swing states against President Trump. All of this without leaving any paper trail; without a single eyewitness; and, amazingly, without also affecting votes for down-ballot Republicans.

Georgia and Michigan judges were not having it, neither was Judge Humetawa. In dismissing the case, she wrote: “Not only have Plaintiffs failed to provide the Court with factual support for their extraordinary claims, but they have wholly failed to establish that they have standing for the Court to consider them. Allegations that find favor in the public sphere of gossip and innuendo cannot be a substitute for earnest pleadings and procedure in federal court.”

There are now no more cases challenging Joe Biden’s victory in Arizona. The case was Bowyer v. Ducey, 20-2321 (D. Az.). Its demise leaves the Kraken series on its last… tentacles. Tentacle. Anyhow, there’s only one Kraken case that hasn’t yet been slapped down — the Wisconsin iteration, which faces a briefing deadline of tomorrow. That case is Feehan v. Wisconsin Elections Commission, 20-1771 (E.D. Wis.). Enjoy it while it lasts.

…And In Michigan: Today, the Michigan Supreme Court denied a petition asking it to let the state legislature decide the election, in defiance of the voters who chose President-elect Joe Biden by more than 154,000 votes.

On November 26, after Michigan certified its vote for Biden, the conservative Thomas More Society’s lawyers brought a suit directly in the state Supreme Court, asking it to “giv[e] the Michigan Legislature an opportunity to finish its constitutionally-mandated work to pick Michigan’s electors.” Among many problems: like every other state, Michigan itself passed a statute dictating that its electors are chosen by popular vote, not by the legislature.

Today, the court refused to hear the case by a 4-3 vote. (The vote was not a determination on the merits. In other words: Three judges wanted to consider the case. They did not necessarily believe that the petitioners were correct.) The case was Johnson v. Benson, No. 162286 (Mich.).

And in Nevada: Before midnight on November 8 – the federal “Safe Harbor” date – the Nevada Supreme Court closed the door on the Trump campaign’s last-gasp attempt to overturn Joe Biden’s victory.

Nevada’s voters chose Joe Biden, and its Secretary of State certified the results, positioning 6 Biden electors from Nevada to vote on December 14. But then Trump’s alternative slate of Republican electors brought a formal election contest, seeking to reverse the popular vote. On December 4, a state trial court judge rejected that contest. The election deniers then appealed to the Nevada Supreme Court, which last night affirmed the lower court – ensuring that the contest was resolved by the end of the safe harbor period. The ruling came in Law v. Whitmer, No. 82178 (Nev.). There is no more litigation pending to reverse the election outcome in Nevada’s courts.

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