The Morning Dispatch: Checking in on the Trump Campaign Lawsuits

Happy Thursday! (Or so we’ve been told.)

Quick Hits: Today’s Top Stories

• West Virginia on Wednesday became the last of the 50 states (plus D.C.) to certify its presidential election results. Joe Biden is expected to win 306 electoral votes when the Electoral College meets on Monday, and Donald Trump is expected to win 232. Biden won 51.3 percent of the popular vote to Trump’s 46.8 percent—a margin of more than 7 million votes.

• The House approved a stopgap spending bill on Wednesday in a 343-67 vote intended to avert government shutdown. If passed by the Senate, the continuing resolution extends the government shutdown deadline from this Friday to December 18, giving Congress more time to approve a spending bill and possibly negotiate a coronavirus relief package.

• Hunter Biden announced yesterday he learned this week that the U.S. attorney’s office in Delaware is investigating his taxes. According to CNN, the investigation into Joe Biden’s son began in 2018 and examines whether he violated tax and money laundering laws amid foreign business dealings in China and elsewhere. 

• The Federal Trade Commission and attorneys general in 46 states sued Facebook on Wednesday, accusing the tech company of anti-competitive behavior and seeking to unwind its acquisitions of Instagram and WhatsApp. “The government now wants a do-over, sending a chilling warning to American business that no sale is ever final,” Facebook’s general counsel said in a statement, pointing out that the FTC previously approved those acquisitions. 

• President-elect Biden is expected to nominate Katherine Tai—a trade lawyer with experience in U.S.-China relations—to serve as his administration’s U.S. Trade Representative.

• Canada’s health regulator authorized Pfizer and BioNTech’s COVID-19 vaccine on Wednesday and plans to begin a nationwide rollout as early as next week.

• Pennsylvania Gov. Tom Wolf, 72, said on Wednesday he has tested positive for COVID-19 and is isolating at home with his wife. In a statement, he said he is “feeling well” and experiencing no symptoms.

• The United States confirmed 222,457 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 12.4 percent of the 1,799,629 tests reported coming back positive. An additional 3,168 deaths were attributed to the virus on Wednesday, bringing the pandemic’s American death toll to 289,357. According to the COVID Tracking Project, 106,688 Americans are currently hospitalized with COVID-19.

A Dispatch Analysis of Trump and Friends’ Election Lawsuits

As we’ve covered the post-election craziness here in TMD the past few weeks, we’ve made several references to Democratic lawyer Marc Elias’ running count of how pro-Trump litigants have fared in lawsuits seeking to challenge or overturn or block the election results. As of last night, Elias had them at 1-55, good for a .018 batting average.

Elias is good at what he does—Fox Business’ Lou Dobbs suggested this week the Trump team “put together a half billion dollars and go hire him and get him out of your way”—and his 1-55 tally is generally accurate in conveying just how fruitless of an endeavor Republicans’ efforts to overturn the election results have been. But he is a partisan (his Democracy Docket website lists the Democratic National Committee, the Democratic Congressional Campaign Committee, the Democratic Senatorial Campaign Committee, and progressive activist group Priorities USA as partners/sponsors), and, as such, has an incentive to paint Team Trump’s efforts in the worst possible light.

So we—led by our Advisory Opinions legal eagles David and Sarah—conducted our own analysis. The Elias tally is technically accurate—but it counts virtually every court action, no matter how minor. His count, for example, would include losing a motion for an evidentiary hearing that was denied because the judge wanted to rule on whether she had jurisdiction first, meaning that, in theory, the plaintiff could win that exact same motion at a later time. Instead of counting each successful motion as a win or each failed appeal as a loss, we looked at the cases from start to finish—or where they stand in the process.

Stripping out these more trivial rulings, the pro-Trump litigants’ batting average does not improve, but—to extend the baseball metaphor—their number of at bats drops precipitously. In our count of cases that have been dismissed, appealed, and/or where the temporary relief being requested—like an injunction or a temporary restraining order—has been denied, Team Trump is 0-11, with seven cases outstanding.

You can read a breakdown of all 18 of these cases up on the site today, but we’ve excerpted a few highlights below. The bottom line: Most of these cases are totally meritless—sweeping allegations free of convincing evidence. A few are more reasonable in their content, but their proposed remedy—disenfranchising millions of voters—is completely out of bounds. 

ARIZONA

Donald J. Trump for President Inc. v. Hobbs: Dismissed

This suit, often referred to as the Sharpie lawsuit, was filed by the Trump campaign, the Arizona GOP, and the RNC in Maricopa County Superior Court on November 7. It alleged that poll workers encouraged voters to use Sharpies that allowed ink to bleed through the ballot and cause the ballots to be rejected as overvotes. The complaint argued that if ballots were reviewed they would “yield up to thousands of votes for President Trump and for other Republican candidates.” The plaintiffs sought to halt certification of the election.

On November 13, the defendants filed a motion arguing that ongoing ballot tabulation had rendered the case moot. The Trump campaign not objecting, a superior court judge dismissed the case with prejudice (removing the possibility of appeal) that day.

Further, it’s worth noting there is no merit to the claim that Sharpies can invalidate ballots. As noted in a Dispatch Fact Check, Maricopa County tweeted on Election Day that polling locations offered Sharpies because they are less likely to smudge. Also, the ballots used in the election were “offset,” meaning that the circles you fill in on your ballot don’t line up on the front and back of the ballot, so the ink bleeding could not cause overvotes on the other side.

GEORGIA

Trump v. Raffensperger: Pending

Filed in state court last Friday, this suit boils down a sweeping list of electoral grievances—“many thousands of illegal votes were cast, counted, and included in the tabulations” for the presidential election, thus “creating substantial doubt regarding the results of that election”—into one huge ask: for the court to either order a new election or, considering the improbability of pulling that off before the state’s electors must be sent, to provide another form of relief, such as allowing the legislature to appoint electors.

The suit alleges that more than 140,000 people were permitted to vote illegally, for a variety of reasons—they were underage, they had moved out of state, they were dead, etc. It also alleges, among other things, that Georgia officials violated state law by mailing out absentee ballot applications more than 180 days before the election.

Given Biden’s small margin of victory in Georgia, this suit isn’t as tall an order as some similar efforts the campaign has brought in other states—although the factual claims have yet to be adjudicated. The state has asked the court to dismiss the suit, which is ongoing.

MICHIGAN

Costantino v. Detroit: Injunctive relief denied, case pending

The eight filings in this lawsuit alleged that election officials neglected to verify signatures, processed and counted voters whose names did not appear in the voter rolls, produced a batch of unsealed ballots attributed to Democratic candidates after the counting of absentee voting concluded, processed ballots arriving after the election deadline, and locked poll watchers out of the counting room after they raised challenges to the alleged fraud. “It’s a very significant case,” Rudy Giuliani, Trump’s personal attorney, said in a November press conference. 

The chief judge of Michigan’s 3rd Judicial Circuit rejected the plaintiffs’ motion for injunctive relief on November 13, stating in a 13-page ruling that they “are unable to meet their burden for the relief sought.” 

“It would be an unprecedented exercise of judicial activism for this Court to stop the certification process of the Wayne County Board of Canvassers,” Judge Timothy Kenny elaborated. On December 8, Judge Kenny denied the plaintiffs’ request for an “independent, non-partisan audit” to be completed by December 13. The case is still pending.

PENNSYLVANIA

Trump v. Boockvar: Dismissed

The Trump campaign filed suit against the Pennsylvania secretary Kathy Boockvar alleging a host of election irregularities, including that observers were not permitted to watch the absentee ballot canvassing and counting; that Democratic counties allowed ballots to be “cured” while Republican counties did not; and that the commonwealth’s mail-in voting process “lacked all of the hallmarks of transparency and verifiability.” The campaign sought to block certification of the election results.

The plaintiffs ultimately filed three separate complaints. On November 21, the trial court dismissed the case, finding that the court had been “presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.” He noted that “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 campaign appealed on narrow grounds on November 22. On November 27, the 3rd Circuit Court of Appeals upheld the dismissal. There has been no request for the Supreme Court to hear the case.

TEXAS

Texas v. Pennsylvania, Georgia, Michigan and Wisconsin: Pending at the U.S. Supreme Court

Texas Attorney General Ken Paxton filed a 154-page lawsuit on Tuesday against Pennsylvania, Wisconsin, Michigan and Georgia, alleging that these four battleground states implemented unlawful statutory changes to their election rules prior to November 3. Given the Supreme Court’s original jurisdiction on cases involving inter-state disputes, Paxton asked the highest court to “enjoin the use of unlawful election results without review and ratification by the Defendant States’ legislatures” and allow all four states’ legislatures to appoint new presidential electors despite federal law’s December 14 deadline for electoral certification. President Trump announced Wednesday that his campaign will join Texas in the lawsuit. Missouri Attorney General Eric Schmitt, a Republican, and 16 other states have also said they will file a brief in support of the lawsuit.

University of California-Irvine law professor Richard Hasen summarized the defects with the suit in a December 8 blog post: “Texas doesn’t have standing to raise these claims as it has no say over how other states choose electors; it could raise these issues in other cases and does not need to go straight to the Supreme Court; it waited too late to sue; the remedy Texas suggests of disenfranchising tens of millions of voters after the fact is unconstitutional; there’s no reason to believe the voting conducted in any of the states was done unconstitutionally; it’s too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not).”

WISCONSIN

Feehan vs. Wisconsin Elections Commission: Pending 

This federal suit was brought by Sidney Powell, formerly associated with the Trump campaign. One of the two plaintiffs, former congressional candidate Derrick Van Orden, later said his name was used without his permission by Powell.

Powell is asking the court to decertify Wisconsin’s election results and for Gov. Tony Evers to certify a Trump victory. The suit alleges that software in voting machines made by the Dominion Voting Systems Corporation was constructed to allow former Venezuelan dictator Hugo Chavez to rig elections, a ploy that was then adapted by “Dominion, domestic third parties or hostile foreign actors” to alter vote records without a trace. The software in question, Smartmatic, is not used in Dominion voting machines and was only used in voting machines made by a different company in one U.S. county in 2020, Los Angeles. 

In order to substantiate these claims, Powell asked for security video from rooms used for voting in the TCF Center, a facility which is actually in Michigan.

This week, U.S. District Judge Pamela Pepper, denied the plaintiff’s request for an evidentiary hearing, noting that asking for such a hearing before the judge had ruled whether her court had jurisdiction to hear the case at all was “bass-ackward.”

Worth Your Time

• Throughout November, many public officials and media personalities engaged in a weeks-long offensive berating Americans who planned to travel during the week of Thanksgiving. But all of this public shaming proved futile, considering millions of Americans gathered with their families over the holiday anyway. How might officials amend their public health message leading up to Christmas and New Years? “Instead of yelling even louder about Christmas than about Thanksgiving, government officials, health professionals, and ordinary Americans alike might try this: Stop all the chastising,” Harvard epidemiologist Julia Marcus writes in the Atlantic. “Remember that the public is fraying. And consider the possibility that when huge numbers of people indicate through their actions that seeing loved ones in person is nonnegotiable, they need practical ways to reduce risk that go beyond ‘Just say no.’”

• The pandemic is raging out of control in pretty much every state, but few are experiencing as acute an outbreak as South Dakota is right now. As of last night, about one in every 770 South Dakota residents at the beginning of the pandemic has died from COVID-19, and one in 178 have been hospitalized with the virus. In the Washington Post, Annie Gowen tells the tragic story of one town—Mitchell—that has been hit especially hard. “People started dying. The wife of the former bank president. A state legislator. The guy whose family has owned the bike shop since 1959. Then [Buck] Timmins, a mild-spoken 72-year-old who had worked with hundreds of local kids during six decades as a Little League and high school coach and referee,” Gowen writes. South Dakota is one of the few remaining states without mask mandates, but Timmins’ death is sparking a change of heart in Mitchell. Susan Tjarks, a conservative Republican on the city council, became convinced more action was necessary. “What we have been doing isn’t working,” she said. “I don’t want to lose any more friends. I don’t want to lose any more neighbors. We have to do what we need to do to step up and prevent these cases from rising.”

Something Delightful

Presented Without Comment

Toeing the Company Line

• Want even more kraken-related Dispatch content? In his latest French Press (🔒), David explains why election lawsuits filed by ex-Trump campaign lawyer Sidney Powell and Texas Attorney General Ken Paxton, among others, are woefully deficient on the legal merits. Despite repeated and decisive legal defeats in the courts, Trump’s supporters continue standing by the president’s claim that the election was stolen. “Credentialed charlatans are telling frightened and sad Americans exactly what they want to hear about topics they have no reason to understand,” David writes. “Is it any wonder they believe?”

• Don’t miss Wednesday’s Dispatch Podcast, where our hosts discuss President-elect Biden’s latest Cabinet picks, the most recent developments in post-election litigation-palooza, and whether the people pushing the latter actually believe what they’re saying.

• In his Wednesday G-File(🔒), Jonah outlines the two main controversies surrounding Biden’s decision to tap retired Army Gen. Lloyd Austin as defense secretary: 1) That Austin downplayed the risks of ISIS to President Obama, and 2) That his nomination would violate the long established—albeit somewhat arbitrary—seven-year “cooling-off period between serving in uniform and serving as defense secretary,” a norm that was previously violated by Trump’s nomination of former Defense Secretary James Mattis. Are either of these factors sufficient to disqualify Austin for the job? Jonah reminds us that “Republicans will want one, maybe two human sacrifices during the confirmation process. And as a career military man, battle-tested, who would also be the first African-American secretary of defense, Austin is not the most attractive meal, politically speaking.”

• Thomas Joscelyn’s latest Vital Interests newsletter (🔒) also looks at the president-elect’s selection of Austin as his nominee for defense secretary, especially as it relates to U.S.-China relations: “Will the Biden administration see the CCP in similar terms [as the Trump administration]? Or will the Biden team consider China as something less than a civilizational threat, but still problematic? And how does the Department of Defense fit into the Biden team’s view of the rivalry with China? All of these questions are yet to be answered.”

Let Us Know

The editors of Time are slated to announce their annual “Person of the Year” later today. Setting aside that the entire exercise is a little ostentatious (especially now that it’s a made-for-TV special), who do you think made the biggest impact this year? If we said you couldn’t choose a politician, does your answer change?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Haley Byrd Wilt (@byrdinator), Audrey Fahlberg (@FahlOutBerg), Charlotte Lawson (@charlotteUVA), and Steve Hayes (@stephenfhayes).