By Democracy Docket

November 2020

What a difference a month makes!

In my last On the Docket newsletter, published four days before the November election, I promised: “We won’t stop fighting for voting rights until the last lawful ballot is counted.” More than three weeks after Election Day, we’re keeping that promise.

Since November 3rd, Trump and his Republican allies have filed 45 lawsuits in seven states to halt vote counting, delay certification and create uncertainty around the election results. In each of these cases, we’ve met them in court, defending Biden’s win and preventing voter disenfranchisement. So far, we’ve won 36 of those lawsuits and only lost one case that affected a few dozen votes.

Two states are undergoing recounts—Georgia and Wisconsin—but the results are not in doubt. Indeed, this is the second recount of Georgia’s ballots. The first recount affirmed Joe Biden’s victory and led the state to certify the election. Other states are still continuing their certification processes. Despite political pressure from Donald Trump, Michigan certified its election results on Monday. Pennsylvania and Nevada followed suit and certified their results yesterday.

Despite the all-out attacks on our election processes, our democracy and democratic institutions still stand. In the coming months, we will need to revisit them to see what needs to be fixed, what needs to be bolstered and what might be beyond repair.

For now, however, we will continue to meet our promise to fight for every voter to have their vote counted. We will fight day-in and day-out until the new Congress is sworn in on January 3rd and President Biden and Vice President Harris take their oaths of office on January 20th.

Our Post-Election Victories

Since November 3rd, Trump and his Republican allies have filed 45 meritless lawsuits in a desperate attempt to delay the inevitable. Every time, we’ve met them in court, defending Biden’s win and preventing voter disenfranchisement. Their record: 1-36.

Republicans have focused their election challenges on six key states: Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. Here is an overview of our wins:

Arizona

We defeated all four of the Republican lawsuits brought in Arizona, including three rooted in the same conspiracy theory. The theory, notoriously known as SharpieGate, alleged that ballots were not being counted if they were filled out with a Sharpie. This claim was completely unfounded; the Secretary of State confirmed that ballots marked with Sharpies were counted. We intervened in all three cases and won! The third SharpieGate lawsuit was dismissed with prejudice meaning it can’t be filed in another court or amended. We also successfully stopped the Arizona Republican Party’s delay tactic—a bogus expanded audit.

Georgia

As soon as the Trump Campaign began to realize it might lose Georgia, it sued to stop the counting of mail ballots that it claimed had arrived after the state’s receipt deadline. The Trump Campaign had no evidence that the ballots in question actually arrived after the deadline, or that there was any appropriate basis for disenfranchising the voters who cast them. We immediately intervened on behalf of the Democratic Party of Georgia to defend these ballots and keep up the count. The judge ruled in our favor, finding that the Trump Campaign provided “no evidence that the ballots referenced in the petition were received after 7:00 p.m. on election day.”

A federal judge then dismissed another Republican lawsuit that sought to exclude the certification of all ballots because of signature matching on absentee ballots. The court found that the Republicans had no standing for any of their claims and that halting state certification would breed confusion and disenfranchisement. Republicans voluntarily dismissed their other election challenge in the state—making us undefeated in post-election litigation in Georgia.

Michigan

We intervened in and won three lawsuits in Michigan. The first case claimed multiple fraud conspiracies in the Michigan election—but had no proof. The judge agreed, writing in a fiery opinion, “It is not surprising that many of the votes being observed by Mr. Sitto were votes cast for Mr. Biden in light of the fact that former Vice President Biden received approximately 220,000 more votes than President Trump.”

The second, filed by the Trump Campaign, asked the court to order all counting and processing of absentee ballots to stop until an election inspector could be present at each counting board. Once again, after intervening, the judge ruled in our favor. The court struck down Trump’s claims of fraud, ruling that the little evidence produced was hearsay.

The third case was brought by the right-wing group Election Integrity Fund. In the challenge, the group attempted to block the lawful counting of ballots in Detroit. We intervened on behalf of the DNC. After a quick hearing, the judge ruled in our favor, again striking down the claims for lack of evidence.

After these loses, Republicans voluntarily dismissed three more of their election challenge lawsuits in one week—making us undefeated in Michigan post-election litigation. The first was in Wayne County, where the Trump Campaign attempted to halt the certification of election results in the biggest county in Michigan. In their notice, the campaign falsely claimed that the Wayne County Canvassing Board declined to certify the election results. The second dismissal was in a case challenging presidential election results from three heavily Democratic counties. Finally, in their third dismissal of the week, Republicans gave up on their attempt to start an unnecessary independent audit of the election.

Nevada

Republicans filed a flurry of lawsuits in Nevada last week, scrambling to find a non-existent path to victory. Down-ballot Republicans filed four separate—but identical—election challenges questioning the use of a mail ballot processing machine. A Nevada judge dismissed one of these cases in Clark County and another was voluntarily dismissed by the Republican plaintiff. A third was dismissed yesterday, when the judge again found nothing wrong with the machines used in the state’s election.

We also defeated the Election Integrity Project’s second attempt at undermining vote by mail. The judge dismissed the group’s request to throw out the lawful votes of over 1.3 million Nevadans. And after an unsuccessful pre-election challenge to signature matching technology used to count ballots in Nevada, Trump allies filed another lawsuit after the election raising many of the same claims. We again intervened on behalf of the DNC; the judge denied the Republicans’ requests to halt vote counting and to alter rules for signature matching and observation.

Pennsylvania

Trump has focused the majority of his litigation on Pennsylvania—but with little success. The week following the election was a total bust for the Republicans. In a Philadelphia lawsuit, the Trump Campaign sued to stop votes from being counted until they could have their observers present. The lawsuit was denied within a day of filing. Then, a GOP case challenging the canvassing process in Montgomery County was outright denied. Republicans also voluntarily dismissed another baseless lawsuit in Bucks County that challenged the certification of election results. Finally, in a lawsuit brought by the Northampton County Republican Committee, we intervened in the group’s appeal of a ruling that denied their request to stop the county board of elections from disclosing the identity of canceled ballots for canvassing purposes. After we intervened, the Republicans filed an application to discontinue the case, which was accepted by the judge.

The next week, we won seven cases in Pennsylvania. The Third Circuit upheld our lower court win protecting the extended ballot receipt deadline. Then, the Trump Campaign lost five different appeals seeking to stop the Philadelphia County Board of Elections from counting certain types of absentee ballots. Finally, we prevented the RNC and Trump Campaign from stopping Montgomery County from counting its mail-in ballots.

Our winning continued though the weekend. We defeated the Trump Campaign’s biggest attempt at undermining the election results. A federal judge dismissed their case in a scathing decision, writing, “This Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state.” The Trump Campaign quickly appealed the decision, but we will continue to defend our win in court.

Most recently, we defeated the Trump Campaign in front of the Pennsylvania Supreme Court. In a sweeping opinion, the court affirmed our five victories from Trump’s Philadelphia appeals and reversed a lower court ruling addressing mail ballots in Allegheny County.

Wisconsin

Last week, Republicans voluntarily dismissed their lawsuit in Wisconsin, which sought to delay certification. Two other certification-related lawsuits remain on the docket, and we continue to monitor them closely. On Friday, the recount requested and paid for by the Trump Campaign started in Dane and Milwaukee County. Although a recount is underway, let’s be clear: Biden leads the state by 0.6%, over 20,000 votes. The recount and corresponding lawsuits will not change the winner of Wisconsin.

We’re Still Fighting

While much of the recount attention has been focused on the presidential race, there are still a few House races that are still counting and recounting ballots. For example, we’re currently working on an extremely close recount in Iowa’s Second Congressional District. As of yesterday, there were 36 votes separating the two candidates. We’re also paying close attention to the two January Georgia Senate runoff races, ensuring every Georgian has the right to vote and have their vote counted. You can follow the count for the closest races in the country via Democracy Docket’s War Room.

Many people are asking what Trump’s one win was and how it affected the vote count. It’s important to know that this small win only affected a few dozen ballots in Pennsylvania—nowhere near Biden’s, now certified, lead of over 80,000 ballots in the state.

The remaining active lawsuits are being tossed out of courts for lack of standing and lack of evidence. Judges across the country are upholding the rule of law, throwing out Republicans’ attempts to challenge the results of the election. In one of our victories in Michigan, the judge said outright that, “Plaintiffs’ interpretation of events is incorrect and not credible.”

In a Pennsylvania case, Republicans lost again after appealing to the Third Circuit. In response to their argument, the judge wrote, “That is not how the Equal Protection Clause works.”

The Trump Campaign and the Republicans also have had many embarrassing filings in court. For example, Republicans were forced to file a “notice of mootness” in their second Sharpie Gate case, admitting that “the tabulation of votes statewide has rendered unnecessary a judicial ruling as to the presidential electors.

Although we’re still fighting Republican attacks on the election, I have no doubt that President-elect Joe Biden and Vice President-elect Kamala Harris will be sworn into office on January 20th, 2021.

What Bode’s Barking About

Even conservatives are questioning Trump’s legal strategy. Conservative legal blog, Power Line, wrote on Thursday about a “catastrophic error” found in an affidavit filed in the Republican’s Georgia lawsuit. The mistake: the GOP’s researcher trying to prove voter fraud mixed up Michigan and Minnesota. The article concludes with what I’ve been saying after every new Republican lawsuit is filed, “they will have to do a great deal better than this if they hope to succeed.

A second recount is underway in Georgia, but President-elect Biden has already been certifed the winner. As I told the New York Times on FridayTrump’s legal strategy seems to be aimed at denying the inevitable. At the end of the day, more people voted in Georgia for Joe Biden and Kamala Harris than voted for Donald Trump and Mike Pence, and there isn’t anything that a count or a recount or a legal action is going to do to change that fact.”

Image of Bode the dog