Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU 8 Vol. 105 No. 1 2020 ELECTION LITIGATION: The Courts Held BY DAVID F. LEVI, AMELIA ASHTON THORN & JOHN MACY Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU Judicature 9 WE HAD AN EXTRAORDINARY ELECTION IN and federal, Northern and Southern, Eastern and Western. NOVEMBER 2020. More Americans voted than in any The federal judges who heard these cases were appointed other election, even though an infectious virus still stalked by recent presidents of both parties — Barack Obama and the nation. Immediately following election day, we then Donald Trump, Jimmy Carter and Ronald Reagan, Bill Clinton experienced an unprecedented series of challenges to the and George H.W. Bush and George W. Bush. outcome, launched by a sitting president. Like so many of our Despite their different backgrounds, judges came to the institutions, our state and local election systems were not same conclusions and rejected the Trump campaign’s alle- designed for a broad-based “stress test” such as President gations. Across more than 60 cases in 12 states, judges Donald Trump put into place. It was unclear if these systems found that the challenges to the election outcome came up would withstand the pressure. But our courts and judges, short. (A database of election cases is available at Democracy over our long history, have been repeatedly tested, and, once Docket, www.democracydocket.com.) again, they came through this challenge with flying colors — The resoluteness of the judiciary in this time of turmoil inspiring confidence, demonstrating their impartiality, and provided inspiration and calm to the country. While the doing their job in transparent, orderly, and dignified fashion. guardrails of democracy generally may need our attention They deserve our thanks. and shoring up, the judiciary rose to the occasion without Numerous cases were filed in state and federal courts by missing a step. In celebration and remembrance of this the Trump campaign, challenging the results of the election great service, we have here collected a sample of some of in different states and on a variety of grounds. Some of the the cases and decisions following the election. May they cases alleged fraud, while others asserted that votes were remind us that the laws are not self-executing, and that it cast or counted in violation of state-specific election rules. is only through the efforts of wise, impartial, and dedicated The cases came before judges of all types — elected and judges that the promise of democracy may be fulfilled. appointed, Democrat and Republican, rural and urban, state — David F. Levi A Sample of Lawsuits that such ballots violated the Pennsylvania mail-in ballots. According to the campaign, election code and should not be counted. the use of the word “shall” was an indication Challenging the 2020 Those cases were consolidated on appeal that the provision was mandatory. The court Presidential Election and decided by the Pennsylvania Supreme responded by citing numerous occasions in Court in a single opinion. the past where the court found similar lang- In re: Canvass of Absentee and Mail-in The majority opinion, written by Justice uage to be directory. In the court’s view, the Ballots of Nov. 3, 2020 Election Christine Donohue, concluded that mail-in text, context, and legislative intent behind The Supreme Court of Pennsylvania ballots signed by a qualified voter could be the election code, in combination with the 241 A.3d 1058 counted even if they lacked a handwritten court’s historical approach to election laws, address, name, or date. The court began by pointed to a finding that the language was Chief Justice Thomas G. Saylor; Justices noting that its “longstanding jurisprudence” directory in this case as well. Max Baer, Debra Todd, Christine Donohue, required a determination of whether the The majority’s holding was unanimous Kevin M. Dougherty, David N. Wecht, Election Code made the relevant informa- regarding a voter’s name and address. Sallie Updyke Mundy tion mandatory or merely directory. Citing Indeed, the court pointed out that mail-in a Pennsylvania case from 1954,1 the court ballots were received by voters with their stated that election laws “ordinarily will be name and address already printed on the Shortly after the election, the Trump cam- construed liberally in favor of the right to envelope. Thus, it seemed plausible that paign filed suit in several Pennsylvania vote,” and that “[t]echnicalities should not be many voters would feel no need to hand- counties, seeking to disqualify mail-in or used to make the right of the voter insecure.” write the same information again. The two absentee ballots that were signed by a qual- The Trump campaign pointed to the lan- partial-dissents (although one joined fully ified voter but lacked a handwritten name, guage of the election code that says voters in the judgment) argued that the date address, and/or date. The campaign argued “shall fill out, date, and sign” a declaration on requirement should be treated differently. u Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU 10 Vol. 105 No. 1 Donald J. Trump for President, Inc. v. the lifeblood of our democracy. Charges of In an order written by Judge Randall H. Secretary Commonwealth of Pennsylvania unfairness are serious. But calling an elec- Warner, the court held against the plaintiff U.S. Court of Appeals for the Third Circuit tion unfair does not make it so. Charges on all claims. To start, the court dismissed the 830 F. App’x 377 require specific allegations and then proof. claim regarding poll watchers as untimely. We have neither here.” According to the court, the observation pro- District Judge Matthew Brann; Chief Judge The appeals court concluded that any fur- cedures during the presidential election D. Brooks Smith, Circuit Judges Michael ther amendment to the plaintiff’s complaint were identical to those used during the Chagares and Stephanos Bibas would be “both inequitable and futile.” The August primary, and any objection to them court described the second amended com- should have been brought at a time when The Trump campaign sued the Secretary of plaint as “light on facts”; in the context of deficiencies could have been cured. With Pennsylvania in federal court, seeking a pre- the campaign’s equal protection claims, the respect to the other two claims, however, liminary injunction preventing Pennsylvania court noted that the campaign’s amended the court ordered the examination of ran- from certifying its election results. The cam- complaint was devoid of any factual alle- domly selected ballots in order to determine paign alleged that various Pennsylvania gation that the Trump campaign had been whether fraud or widespread error occurred. counties restricted Trump-affiliated poll treated differently from the Biden cam- First, the court ordered that forensic docu- watchers from observing the vote count, paign. Indeed, there was no allegation that ment examiners could review 100 randomly and that some counties allowed voters to fix only Biden voters were given leave to cure selected mail-in ballots to do signature com- technical defects in their mail-in ballots after their ballots, or that only Trump poll watch- parisons. Two document examiners, one they were cast (but prior to election day). ers were prevented from observing the vote for the plaintiff and one for defendants, The Trump campaign asserted that these count. Finding no plausible claim under undertook an investigation of the randomly alleged errors in election administra- the Equal Protection Clause, and citing the selected ballots. Although both examin- tion amounted to violations of the Equal authority of the Iqbal and Twombly line of ers found a few signatures out of the 100 to Protection Clause of the U.S. Constitution. pleading cases, the Third Circuit affirmed. be “inconclusive,”3 neither examiner found Four days after the Trump campaign filed signs of forgery or simulation, and neither suit in the district court, the Third Circuit Ward v. Jackson et al. found any basis for rejecting the signatures. released a decision in a different election Superior Court of Arizona, Maricopa The court noted that each ballot examined case, Bognet, et al. v. Boockvar et al.,2 that County; Arizona Supreme Court listed a phone number that matched a phone cast serious doubt on whether the Trump CV 2020-015285 number on file. After reviewing the ballots campaign had Article III standing to pur- and testimony, the court found that there was sue its claims. The campaign amended its Judge Randall H. Warner no evidence of “misconduct, impropriety, or complaint in hopes of avoiding the unfa- violation of Arizona law” in reviewing the sig- vorable precedent, but it was not successful. Kelli Ward, a Republican nominee to be one natures on mail-in ballots. Judge Brann found that the campaign could of Arizona’s presidential electors, sued var- Second, the court ordered that counsel not establish that it had suffered an “injury ious Arizona state officials in Arizona state could review a random sample of 100 dupli- in fact,” and dismissed the complaint. The court, seeking an injunction preventing cate ballots. Maricopa County voluntarily Trump campaign then moved to amend its the certification of the presidential election made another 1,526 duplicate ballots avail- complaint again. The district court denied results. Ward alleged that poll watchers able, for a total of 1,626. Under Arizona law, this motion, and the campaign appealed.