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 , Jimmy Carter and , 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 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 , 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. , , 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. 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 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. were given “insufficient opportunity” to election officials are sometimes required to In Donald J. Trump for President, Inc. observe the actions of election officials, elec- manually duplicate a ballot so that it can be v. Secretary Commonwealth of Pennsylvania, tion officials were not “sufficiently skeptical” fed through a voting machine. Out of the in an unpublished opinion written by when comparing signatures on mail-in bal- 1,626 duplicate ballots reviewed, nine had Judge Stephanos Bibas, the Third Circuit lots with signatures on file, and election an error in the duplication of the vote for denied relief. The court began with the fol- officials committed errors when creating president.4 The court noted that the dupli- lowing observation: “Free, fair elections are duplicate ballots. cation process was 99.45 percent accurate, 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 11

May these cases remind us that the laws are not self-executing, and that it is only and that there was no evidence of inten- through the efforts of wise, impartial, tional misconduct or fraudulent intent. and dedicated judges that the promise Furthermore, the court concluded that a of democracy may be fulfilled. 0.55 percent error rate did not show any impact on the outcome. The plaintiff requested expedited review from the Supreme Court of Arizona. The ance to local election officials. If any unlawful In Wood v. Raffensperger, a Georgia voter court granted such review and affirmed, exclusion did occur, the proper defendant sued the Secretary of State of Georgia in finding that any errors were “statistically neg- would be city or township clerks and not the federal court, seeking an injunction pre- ligible,”5 and no evidence of misconduct was Secretary of State. As to the poll watcher’s venting the Secretary from certifying the presented. affidavit, Judge Stephens found it inadmissi- Georgia election results. Wood argued that ble because it was based on multiple layers the absentee ballot and recount proce- Donald J. Trump for President, Inc. of hearsay rather than direct evidence. dures that were used in the 2020 election v. Benson Finally, the court found no legal basis for violated Georgia law and his federal con- Michigan Court of Claims the third claim regarding access to video stitutional rights. Among other things, Case No. 20-000225-MZ surveillance of ballot drop boxes. Judge Wood challenged the procedure for reject- Stephens noted that the Michigan statute ing absentee ballots, and he alleged that Judge Cynthia Diane Stephens providing for video surveillance of drop poll watchers were excluded or otherwise boxes only applied to drop boxes installed prevented from observing vote-counting. Just one day after the election, the Trump after October 1, 2020, and there was no The evidence presented by Wood included campaign, along with a credentialed “elec- evidence indicating how many drop boxes testimony and affidavits from several poll tion challenger,”6 sued the Michigan fit this description, or where they were watchers. One poll watcher stated that the Secretary of State in the Michigan Court located. Furthermore, nothing in the statute counting was hard for her to follow, and that of Claims seeking to stop the counting of provided that poll watchers or election chal- she thought there were possible tabulation absentee ballots. The parties alleged that lengers should have access to the footage. errors. Another poll watcher testified that various instances of illegal conduct justi- The statute simply stated that “[t]he city or “one batch of absentee ballots felt different fied a preliminary injunction. First, they township clerk must use video monitoring from the rest, and that that batch favored argued that the election challenger had of that drop box to ensure effective monitor- Joe Biden to an unusual extent.” been prevented from observing the count- ing of that drop box.” In an opinion written by Chief Judge ing of absentee ballots, in contravention The court also held that all of the claims William Pryor, the court pointed out that of Michigan law. Second, the parties sub- were moot, because most of the absentee “[t]his appeal turns on one of the most fun- mitted an affidavit from a poll watcher who ballots had already been counted. It was damental principles of the federal courts: alleged that a poll worker told her that other on this ground that the Michigan Court of our limited jurisdiction.” The court held poll workers were instructing ballot counters Appeals and the Michigan Supreme Court that Wood’s claims faced two jurisdictional to change the “date received” on absentee affirmed the decision. defects. First, Wood lacked Article III stand- ballots. Third, they argued that election ing to bring his claims because he lacked a challengers were not given access to video Wood v. Raffensperger “concrete and particularized” injury. Wood surveillance of ballot drop boxes, in viola- U.S. Court of Appeals claimed that the Georgia procedures diluted tion of Michigan law. for the Eleventh Circuit his vote, and that the procedures gave a Judge Cynthia Diane Stephens declined 981 F.3d 1307 preference to mail-in voters. However, the to issue the preliminary injunction. As to the court pointed out that both injuries were exclusion of poll watchers, she found that Chief Judge William Pryor, Circuit Judges shared in equal measure by a large class of there was no basis to sue Michigan’s Secretary Jill Pryor and citizens, and thus were not “particularized.” of State, who had issued appropriate guid- In any event, voters had the choice to vote 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

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in-person or by mail, so any preference was tional defects: The plaintiff failed to select the pal officials so misused this power as to more imaginary than real. proper defendants for an election challenge alter the “Manner” by which Wisconsin Second, the court held that Wood’s claims under Georgia law, the plaintiff’s challenges appointed its electors. were moot. After Wood’s claims failed at the to election procedures adopted long before Specifically, he challenged three election district court, the election results were cer- the election were untimely, and the plaintiff procedures issued as guidance by the WEC tified. The court acknowledged that “‘[w] e suffered from similar standing and mootness in advance of the 2020 election: (1) The WEC cannot turn back the clock and create a world defects as the plaintiff in Wood. The court also clarified the procedure for voters to qualify as in which’ the 2020 election results are not noted that Boland’s allegations rested on “indefinitely confined” and thus vote absen- certified.” Thus, much of the relief requested “speculation rather than duly pled facts,” and tee without presenting photo identification, by the plaintiff was impossible for the court that the factual allegations, even if credited, (2) it endorsed the use of “drop boxes” as a to provide. did not plausibly support his claims. The court means to submit absentee ballots, and (3) Due to these jurisdictional defects, concluded that the facts pleaded by Boland it allowed municipal clerks to contact voters Wood’s claims could not properly be heard did not “demonstrate that the results of the for the purposes of correcting the address in federal court: “[W] e may not entertain election cannot be relied upon.” Even if the on an absentee ballot.9 President Trump post-election contests about garden-variety court accepted some of Boland’s allegations, alleged that these procedures were contrary issues of vote counting and misconduct that the defects were not enough to support the to Wisconsin statutory law and, with respect may properly be filed in state courts.” conclusion that sufficient illegal votes were to drop boxes specifically, invited voter fraud. cast to change the outcome of the election. The district court found for the defendants, Boland v. Raffensperger et al. Boland appealed the order to the Georgia and President Trump appealed. Superior Court of Georgia, Fulton County Supreme Court, which affirmed the judg- In an opinion written by Judge Michael Civil Action No. 2020CV343018 ment without opinion.8 Scudder, the court began by finding that President Trump’s delay in bringing suit Judge Emily K. Richardson Trump v. Wisconsin Election Commission disqualified his challenges to Wisconsin U.S. Court of Appeals election procedure. “The timing of election Paul Andrew Boland, a Georgia voter, sued for the Seventh Circuit litigation matters,” the court said, noting various Georgia state officials in state 983 F.3d 919 that “[t] he President had a full opportunity court, seeking an audit of Georgia elec- before the election to press the very chal- tion documents and decertification of the Judges , , lenges to Wisconsin law underlying his results if such audit were to “demonstrate and Michael Scudder present claims.” According to the court, “[t] he that the results of the election cannot President’s delay alone is enough to warrant be relied upon.”7 Boland made two alle- Two days after Wisconsin certified the affirming the district court’s judgment.” gations of impropriety: First, he alleged results of its 2020 election, President Trump That said, the court added that the suit that a YouTube video analyzing United sued the Wisconsin Election Commission would “fare no better” if the court reached States Postal Service forwarding informa- (WEC) and other state officials in federal the merits of the Electors Clause claim. Given tion proved that over 20,000 voters in the court, seeking to decertify the election the broad grant of authority to the Election Georgia election were ineligible to vote in results. President Trump argued that elec- Commission by the Wisconsin Legislature, Georgia. Second, he alleged that certain tion procedures in Wisconsin violated the the court found that the WEC acted “under Georgia signature-matching procedures, Electors Clause of the U.S. Constitution. color of authority expressly granted to it by which were adopted through a settlement The clause specifies that the legislature of a the Legislature.” Indeed, prior to this case, agreement a year prior to the election, were state shall direct the “Manner” in which the the Wisconsin Supreme Court already had inconsistent with Georgia’s election code. state’s electors will be selected. Wisconsin rejected some of the same claims in state Georgia Superior Court Judge Emily K. election laws give considerable deference court.10 Thus, the court found no violation Richardson held that Boland’s case suffered to municipalities in running elections, and of the Electors Clause and affirmed the deci- from a litany of procedural and jurisdic- President Trump argued that the munici- sion of the district court. 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 13

Law et al. v. Whitmer et al. electors. The court began by explaining that analysis based on phone surveys, commer- The First Judicial District Court for several procedures were in place to ensure cially available databases, and affidavits. the State of Nevada, Carson City the integrity of voting machines, including The court noted that the plaintiffs’ experts Case No. 20 OC 00163 1B extensive testing and auditing. Furthermore, were in some cases unable to identify the the issue of whether the machines were ille- sources of their data, and the data they Judge James T. Russell gal under Nevada law had already been did offer lacked independent verification decided in a case brought by the Trump or scrutiny. Accordingly, the court gave the Republican presidential elector candidates campaign prior to the election.11 With this evidence little weight. Ultimately, the court filed a statement of contest challenging prior case in mind, the court concluded that concluded that the evidence presented was the 2020 presidential election results in the plaintiffs here were “adequately repre- not enough to support the plaintiffs’ fraud Nevada. The plaintiffs asked the Nevada dis- sented” by the plaintiffs in the prior action. claims “under any standard of evidence.” trict court to either issue an order declaring Thus, their legal claim was precluded by the The plaintiffs appealed to the Nevada Donald Trump as the winner in Nevada, and decision in the previous case. Supreme Court, which quickly affirmed the thus certify the plaintiffs as electors, or to The court then examined the evidence district court. In a short order, the court held issue an order declaring Joe Biden’s victory provided by the plaintiffs to show various that “appellants have not pointed to any “null and void,” and that no electors be certi- other kinds of fraud, including votes by unsupported factual findings [by the district fied for either candidate. ineligible voters or deceased persons. The court], and we have identified none.”12 The plaintiffs made several allegations of court pointed out that much of the evidence fraud and illegality. Primarily, the plaintiffs provided by plaintiffs was in the form of wit- objected to the use of voting machines to ness declarations. The court found that the count mail-in ballots. The plaintiffs argued declarations, as out-of-court statements, con- that the machines used to count mail-in stituted inadmissible hearsay. Furthermore, DAVID F. LEVI is ballots were prohibited by Nevada law, and they were outside the scope of the Nevada Director of the Bolch that the mechanical process for automat- election-contest statute, which prefers depo- Judicial Institute and the ically matching signatures was inefficient sitions as a means of presenting evidence, Levi Family Professor of Law at Duke Law School. and susceptible to error. The plaintiffs also so that cross-examination under oath may He served as dean of argued that thousands of votes came from be made possible. Nonetheless, the court Duke Law for 11 years non-Nevada residents or deceased persons, stated that it would consider the totality of and previously was Chief and that poll watchers were not given mean- the evidence presented. United States District ingful access to observe the vote count. The court also expressed doubts regard- Judge for the Eastern Nevada District Court Judge James T. ing the expert evidence provided by the District of California. Russell granted judgment to the defendant plaintiffs. The plaintiffs’ experts offered JOHN MACY is a second-year student at Duke Law School and a 1 Appeal of James , 105 A.2d 64 (Pa. 1954). election challengers are given access to observe staff editor on the Duke 2 980 F.3d 336 (3d Cir. 2020). election procedures. MCL 168.733. 3 “Inconclusive” meaning that the examiner could not 7 See plaintiff’s complaint, page 2. Law Journal and the testify that the signature on the ballot was a match 8 Boland v. Raffensperger, No. S21M0565 (Ga. 2020). Duke Environmental with one on file. The examiner for the plaintiff found 9 Although the first two of these procedures were issued Law & Policy Forum. six signatures out of 100 to be inconclusive, and the as guidance in 2020, the procedure for curing an examiner for the defendant found 11. absentee ballot address had been in place since 2016. AMELIA ASHTON 4 The Supreme Court of Arizona later noted in its opinion 10 The Wisconsin Supreme Court expressly rejected THORN is assistant on review that the nine ballots, if corrected, would have President Trump’s challenge to the procedure allowing director of special resulted in seven additional votes for Trump and two “indefinitely confined” voters to vote absentee without for Biden. Ward v. Jackson, No. CV-20-0343-AP/EL (Ariz. presenting identification. The court refused to reach the projects for the Bolch 2020), at 4. other two challenges on the ground of laches. Trump v. Judicial Institute and 5 Id. Biden at 6. , 951 N.W.2d 568 (Wis. 2020). articles editor for 6 Michigan law provides for designation of “election 11 See Kraus v. Cegavske, No. 82018 (Nev. 2020). challengers” under MCL 168.730. Among other things, 12 Law v. Whitmer, No. 82178 (Nev. 2020) at 4. Judicature.