President Donald Trump leaves the East Room of the White House in Washington, D.C., November 4, 2020. (Carlos Barria/Reuters)Where the latest lawsuits stand.
‘You haven’t shown a single problem with the way the game was scored.”
“Yeah, but the game was played at night, and the rulebook only permits day games.”
If you can follow that argument, then you can grasp the Republican challenge to the 2020 election in Pennsylvania that was rejected by the commonwealth’s supreme court on Saturday night. That ruling, which is factually related to but separate from President Trump’s federal lawsuit that the Third Circuit threw out last Friday, is likely to end the election-litigation efforts in Pennsylvania, though it is still possible that the cases could be appealed to the U.S. Supreme Court.
Meantime in Georgia, attorneys Lin Wood and Sidney Powell are pressing on with a lawsuit filed, not on behalf of the president directly, but on behalf of Trump supporters, including members of the Republican-nominated Electoral College slate that would have cast the state’s votes if Trump had won. On Sunday, they won a minor victory — on procedural grounds, not on the merits — in their bid to convince a Georgia federal judge to decertify the GOP-controlled state government’s conclusion that President-elect Biden won a slim victory there.
The state lawsuit in Pittsburgh was brought by U.S. Representative Mike Kelly of northwestern Pennsylvania and other Republicans. They argued that the commonwealth’s constitution does not permit mass mail-in voting — as distinguished from individualized absentee voting. They therefore challenged the state legislature’s 2019 Act 77, which permitted “no-excuse” mail-in voting. Act 77 marked a departure from prior Pennsylvania law, under which voters could only request absentee ballots based on legally approved reasons for not being able to vote in person. In 2020, the legislature further liberalized this accommodation due to COVID-19 concerns.
The Republican plaintiffs had a legitimate point. Prior to Act 77, state law simply codified the Pennsylvania’s constitution, which authorizes absentee voting based on a generous list of excuses, but does not expressly authorize no-excuse mail-in voting. The plaintiffs thus found a sympathetic ear in commonwealth judge Patricia McCullough of Pittsburgh. Last week, she ordered a temporary stay in the certification process — although the stay’s efficacy was debatable, since her order came after the state had certified the results (albeit before some ministerial tasks, such as the issuance of certificates to the Biden slate of electors, who will cast the commonwealth’s electoral votes).
State election officials, who are Democrats, immediately appealed to the state supreme court, where their eventual victory was certain. That tribunal is a Democrat-dominated elected body and, as we’ve previously recounted, it has both flouted the plain terms of state law and extended mail-in voting beyond even the state’s constitutionally questionable authorization of it. There was zero chance that it would side with Republicans.
Here, however, the court was on solid footing because the plaintiffs did not file lawsuits against the new mail-in voting when it was enacted. They waited for over a year, until after 2.6 million Pennsylvanians had availed themselves of the opportunity to vote by mail during a pandemic. Republicans were suddenly objecting now, not because the election was unfair, but because their presidential candidate lost. Indeed, some of the plaintiffs had run for office under the Act 77 mail-in procedures without objecting to them.
Consequently, the court ruled that the doctrine of laches applied — i.e., claims must be timely raised or they are forfeited. Moreover, to repeat a refrain we’ve been stressing for a while, there was a gross mismatch between the harm alleged and the remedy sought: The Republicans were asking that the mail-in ballots be thrown out or, in the alternative, that the election be voided and the (Republican-majority) state legislature be directed to choose the state’s electors (i.e., the Trump slate). This would disenfranchise either the 2.6 million Pennsylvanians who mailed in ballots or all of the commonwealth’s 6.8 million voters.
In a concurring opinion, Judge David Wecht further contended that the court could not authorize the state legislature to choose electors. Although the Constitution empowers the state legislature to choose the manner of selecting electors, Judge Wecht observed (as I have also pointed out) that the commonwealth’s legislature did so long ago by enacting provisions that award Pennsylvania’s Electoral College votes to the winner of the popular election.
The court’s ruling on the issue of laches was unanimous. Two judges dissented in part, reasoning that the Republican plaintiffs’ construction of the state constitution appears sound, and that Act 77’s attempt to put a 180-day time-limit on challenges to its lawfulness should be unenforceable against challenges based on the state constitution (an issue the majority opinion sidestepped). The dissenters argued that the plaintiffs should be permitted to proceed with their objections to mass mail-in voting for the purpose of future elections, but not the 2020 election.
In Georgia, attorneys Lin Wood and Sidney Powell are pursuing their theory that the election was stolen from President Trump by cyber-fraud — specifically, manipulation of the tabulation program, to which they claim Dominion voting machines are vulnerable, in order to switch Trump votes to Biden votes.
Sunday turned out to be a frenetic day because Wood learned, apparently from state election officials, that the memories on voting machines were about to be reset (or “wiped,” as Wood put it). This was to occur on Monday (today) — recall that Georgia will be holding a statewide run-off election for both U.S. Senate seats in just five weeks (i.e., on January 5). Wood objected because the reset would make it practically impossible for him and Powell to conduct a forensic examination into the Dominion software’s operation in the November election, which they contend is necessary to their case.
U.S. district judge Timothy Batten initially issued a temporary injunction, directing state election officials to preserve the machines in their present condition while he deliberated over whether to permit a forensic examination. Judge Batten withdrew the injunction a few hours later when the state officials named in the Wood/Powell lawsuits explained that the counties, not the state, had control over the machines.
Finally, on Sunday evening at 7:45 p.m., Batten convened an emergency conference, via Zoom, at which the lawyers countered that they were prepared to amend their complaints in order to add the officials in Cobb, Gwinnett, and Cherokee county as defendants. The state also contended that the forensic examination contemplated by the plaintiffs threatened state election security and could compromise its contractor’s proprietary and trade secrets, and thus should not be permitted absent a more compelling showing of wrongdoing than has been made to this point. Wood and Powell replied that these concerns could be assuaged by allowing the state’s own experts to participate in the examination, conducting it on videotape, and directing that the results be provided only to the court, for consideration of any appropriate protective orders against disclosure.
At the conclusion of the hearing, Judge Batten issued a temporary restraining order: For the next ten days, unless the court directs otherwise, Georgia is barred from permitting the erasure or alteration of data from the Dominion machines. In the meantime, the state is to provide the plaintiffs with a copy of its contract with Dominion, and must file by close of business Wednesday (December 2) a brief and any supporting affidavits in opposition to the forensic examinations.
Another hearing in the case is set for Friday (December 4). To be clear, Judge Batten has not ruled on the merits of the case or even indicated that he will permit the forensic examination of the Dominion data. The injunction freezes matters for a few days so the court can consider the parties’ positions and make a more informed decision.