ROBERT W. FERGUSON Attorney General KRISTIN BENESKI, WSBA #45478 LAURYN K. FRAAS, WSBA #53238 BRIAN J. SUTHERLAND, WSBA #37969 Assistant Attorneys General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744
UNITED STATES DISTRICT COURT [ ] [ ]
STATE OF WASHINGTON, [ ], NO.
Plaintiffs, COMPLAINT FOR v. DECLARATORY JUDGMENT, MANDAMUS, AND EMILY MURPHY, in her official INJUNCTIVE RELIEF capacity as Administrator of the General Services Administration; GENERAL SERVICES ADMINISTRATION,
Defendants.
I. INTRODUCTION 1. Joseph R. Biden, Jr. and Kamala D. Harris have won the 2020 presidential election, having received more votes than any presidential ticket in history and garnered a commanding lead of 74 Electoral College votes. Notwithstanding this clear and decisive victory, the General Services Administration (GSA) and its Administrator, Emily Murphy, are refusing to acknowledge Biden and Harris as the “apparent successful candidates for the office of the President and Vice President,” as required by the Presidential
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Transition Act of 1963, as amended. In refusing to take this mandatory administrative step, Defendants are withholding critical transition funding, blocking the transition team’s access to federal agencies and facilities, and preventing the incoming administration from obtaining critical national security information—most significantly, information concerning the federal government’s COVID-19 pandemic response, including information on the
1 Strategic National Stockpile and Operation Warp Speed,0F the federal government’s vaccine distribution plan. Withholding this information and delaying the transition endangers national security and risks countless American lives.
2. Beginning with President George Washington’s decision not to seek a third term in 1796, the United States has enjoyed a long and proud tradition of peaceful transfers of power from one presidential administration to the next. The Presidential Transition Act of 1963—passed in the wake of a close and contentious presidential election in 1960—preserves and codifies this important tradition by requiring the outgoing administration to provide necessary resources to the incoming administration in the interim period between Election Day and Inauguration Day. The Act directs the GSA Administrator to “ascertain” the
1 “Operation Warp Speed’s goal is to produce and deliver 300 million doses of safe and effective vaccines with the initial doses available by January 2021.” https://www.hhs.gov/coronavirus/explaining-operation-warp- speed/index.html (last visited Nov. 20, 2020).
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“apparent successful candidates” for President and Vice President “following the general elections held to determine the electors of the President and Vice President,” and to provide them with necessary information and resources to ensure a smooth transition and minimize disruption. Those duties are ministerial and nondiscretionary.
3. By November 7, 2020, the Associated Press and virtually every major American news network had declared President-elect Biden and Vice President-elect Harris as the winners of the presidential election with a majority of Electoral College votes, based on reported vote counts from states with a sufficient number of electoral votes to determine the outcome (i.e., a minimum of 270). In the days following the election, as states reported additional vote counts, President-elect Biden and Vice President-elect Harris’s Electoral College votes grew from 273 to the current total of 306, while President Trump’s Electoral College vote total stands at just 232 votes. When President Trump won the presidential election in November 2016 with the same number of Electoral
2 College votes as Biden and Harris, Trump claimed a “landslide” victory.1F
2 Donald Trump (@realDonaldTrump), Twitter (Nov. 27, 2016), https://twitter.com/realDonaldTrump/status/928325667556548608?s=20 (last visited Nov. 20, 2020). He later tweeted “MASSIVE (304-227) Electoral College landslide victory!” Donald Trump (@realDonaldTrump), Twitter (Nov. 8, 2017), https://twitter.com/realDonaldTrump/status/928325667556548608?s=20 (last visited Nov. 20, 2020) (after two of Trump’s electors defected in 2016, he ended up with only 304 Electoral College votes instead of 306).
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4. The Presidential Transition Act’s stated purpose is to “promote the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the Inauguration of a new President.” Pub. L.
No. 88-277, 78 Stat. 153, § 2. And in passing the Act, Congress expressly warned that “[a]ny disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people.” Id.
5. Indeed, past delays in presidential transitions have had detrimental consequences for the American public. For example, in 2000, the GSA Administrator refused to release transition resources to President-elect George W. Bush for more than a month after Election Day that year, waiting until after the Supreme Court issued its ruling in Bush v. Gore and Al Gore conceded the election before determining that Bush was the “apparent” winner. That administrative delay was not without consequence. The 9/11 Commission later found that “[t]he dispute over the election and the 36-day delay cut in half the normal transition period. Given that a presidential election in the United States brings wholesale change in personnel, this loss of time hampered the new administration in identifying, recruiting, clearing, and obtaining Senate
3 confirmation of key appointees.”2F The Commission warned that similar delays in
3 The 9/11 Commission Report, https://govinfo.library.unt.edu/911/report/911Report.pdf, at 198 (last visited Nov. 21, 2020).
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the future could leave the United States vulnerable to terrorist attacks and other national security threats. And, based on these concerns, the 9/11 Commission strongly recommended not simply maintaining normal time periods for presidential transitions, but expediting the procedures and access to information for the incoming administration because “a catastrophic attack could occur with
4 little or no notice.”3F
6. Today, such threats are as serious as ever. But until the GSA Administrator ascertains the reality that Biden and Harris are the “apparent successful candidates,” they remain without access to the classified materials, briefings, and secure communications that would allow them to most effectively prepare for and respond to current and future national security threats.
7. With their transition in limbo, Biden and Harris also remain unable to gain access to the agencies and information necessary for them to shepherd the country through the unprecedented national health and economic crisis caused by the COVID-19 pandemic, which has already claimed the lives of more than 250,000 Americans, including many residents of the Plaintiff States. By failing to recognize Biden and Harris as the “apparent successful candidates,” the GSA Administrator is hindering the incoming Administration’s ability to effectively address the COVID-19 pandemic by, among other things, blocking: (1) funding necessary to effectuate the transition; (2) information about Operation Warp
4 Id. at 422.
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Speed, the federal government’s vaccine distribution plan for which the Biden- Harris Administration will assume responsibility on January 20, 2021; (3) communication with staff at the United States Department of Health and
Human Services (HHS) and other federal agencies who have been overseeing the
5 federal government’s response to the pandemic;4F and (4) Treasury Department officials responsible for implementation of COVID-19 economic relief programs, which are desperately needed by tens of millions of Americans.
8. Operation Warp Speed’s chief science advisor, Dr. Moncef Slaoui, recently called on the White House to allow Operation Warp Speed to make contact with President-elect Biden’s team. As Dr. Slaoui explained, interrupting the federal government’s vaccine project would be “a matter of life and death for
6 thousands of people.”5F President-elect Biden, who has acknowledged that “[w]e
5 USA.Gov, Government Response to Coronavirus, COVID-19, https://www.usa.gov/coronavirus (last visited Nov. 21, 2020). 6 Financial Times, US vaccine tsar calls on White House to allow contact with Biden, Nov. 13, 2020, https://www.ft.com/content/1ce353bd-45fb-47f4- 861f-3deaa4965b61 (last visited Nov. 21, 2020).
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7 haven’t been able to get into ‘Operation Warp Speed,’”6F has likewise warned that
8 “[m]ore people may die if we don’t coordinate.”7F
9. Given the unprecedented nature of the COVID-19 pandemic, and the life-or-death consequences associated with the GSA Administrator’s continued delay in ascertaining the “apparent” winner of the Presidential election, the States of Washington, [ ] (collectively, the States) bring this action to protect their States and their residents against the GSA Administrator’s unlawful actions and compel her compliance with the law.
II. JURISDICTION AND VENUE 10. The Court has jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1346 (United States as a defendant), and 5 U.S.C. §§ 701-706 (judicial review of agency action under the Administrative Procedure Act (APA)). An actual controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court may grant declaratory relief,
7 Courtney Buble, Biden Team Says Transition Delay Could Hinder Vaccine Distribution, Government Executive, (Nov. 19, 2020), https://www.govexec.com/management/2020/11/biden-team-says-transition- delay-could-hinder-vaccine-distribution/170205/ (last visited Nov. 21, 2020).
8 Morgan Chalfant, Biden: ‘More people may die’ if Trump refuses to coordinate on vaccine plans, the Hill (Nov. 16, 2020), https://thehill.com/homenews/administration/526197-biden-more-people-may- die-if-trump-refuses-to-coordinate-on- vaccine?utm_source=&utm_medium=email&utm_campaign=34897 (last visited Nov. 21, 2020).
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mandamus, injunctive relief, and other relief pursuant to 28 U.S.C. §§ 2201-2202, 28 U.S.C. § 1361, and 5 U.S.C. §§ 705-706.
11. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(3) because this is a judicial district in which Plaintiff State of Washington resides and this action seeks relief against federal agencies and their officials acting in their official capacities. See California v. Azar, 911 F.3d 558, 570 (9th Cir. 2018), cert. denied sub nom. Little Sisters of the Poor Jeanne Jugan Residence v. California, 139 S. Ct. 2716 (2019).
III. PARTIES 12. Plaintiff State of Washington is represented by its Attorney General, Bob Ferguson, who is the State’s chief legal advisor. The powers and duties of the Attorney General include acting in state and federal court on matters of public concern to the State.
13. Washington has 12 electoral votes in the Electoral College, all of which are allocated to the winners of the statewide popular vote. Wash. Rev. Code § 29A.56.320. In 2020, Washington voters selected Biden and Harris for President and Vice President, respectively. Under Washington law, the deadline for the Secretary of State to certify this result is December 3, 2020. Wash. Admin. Code § 434-262-120.
14. COVID-19 has spread throughout virtually all of Washington State. Washington currently has more than 139,000 COVID-19 cases, and more than
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9 2,600 Washingtonians have lost their lives to COVID-19.8F Washington State is currently working with the federal government and local partners within the state to plan for the distribution of a COVID-19 vaccine when one becomes
10 available.9F Washington submitted an interim plan for the COVID-19 vaccine
11 distribution to the Centers for Disease Control (CDC) on October 16, 2020.10F
15. [ ]
16. As set forth more fully below, the States bring this action to redress harms to their sovereign, proprietary, and quasi-sovereign interests caused by the GSA Administrator’s failure to fulfill her duties under the Presidential Transition Act of 1963, as amended, 3 U.S.C. § 102 note.
17. Defendant Emily Murphy is the Administrator of the General Services Administration. She is sued in her official capacity.
18. Defendant General Services Administration is an independent agency of the United States government.
IV. FACTUAL ALLEGATIONS
9 Washington State Department of Health, COVID-19 Data Dashboard, https://www.doh.wa.gov/Emergencies/COVID19/DataDashboard (last visited Nov. 20, 2020).
10 Washington State Department of Health, Coronavirus (COVID-19) Vaccine, https://www.doh.wa.gov/Emergencies/COVID19/Vaccine (last visited Nov. 20, 2020). 11 Id.
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A. The COVID-19 Pandemic 19. The United States is in the midst of the COVID-19 pandemic, a global health crisis caused by a novel coronavirus that was first identified in late 2019. COVID-19, the disease caused by the novel coronavirus, was declared a
Public Health Emergency of International Concern by the World Health Organization on January 30, 2020. There is currently no FDA-approved vaccine for the prevention of COVID-19, although there are promising vaccine
12 candidates.11F
20. The COVID-19 pandemic has impacted virtually every aspect of American life in 2020, including the General Election held on November 3, 2020. Many states expanded access to voting by mail and established other public- safety protocols in light of the pandemic, and vote-counting took several days longer than is typical for most Presidential elections. As detailed below, major news outlets determined on November 7, 2020 that Biden won the election, meaning that President Trump will not serve a second consecutive term as President. The transition of power to President-elect Biden coincides with an unprecedented national crisis as the COVID-19 pandemic rages on.
21. The numbers of confirmed cases and deaths from COVID-19 have grown exponentially in the United States since January 2020, and are expected
12 U.S. Food & Drug Administration, COVID-19 Vaccines, https://www.fda.gov/emergency-preparedness-and-response/coronavirus- disease-2019-covid-19/covid-19-vaccines (last visited on Nov. 21, 2020)
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to continue to grow exponentially over the coming months. All human beings share a risk of contracting and, upon contraction, transmitting the virus that causes COVID-19. Any adult who contracts the virus may experience life- threatening symptoms, lifelong health consequences, and death.
22. The virus that causes COVID-19 is easily transmitted. Evidence indicates that the most likely means of transmission of the novel coronavirus is through close human-to-human contact, especially indoors. Information from the Centers for Disease Control and Prevention (CDC) indicates that novel
13 coronavirus spreads more efficiently than influenza.12F And the fatality rate of COVID-19 is much higher than the fatality rate for the seasonal influenza.
23. On March 13, 2020, President Trump declared a national emergency
14 in response to the COVID-19 pandemic.13F
24. Since that time, COVID-19 infection rates have increased dramatically. As of November 20, 2020, nearly 12 million individuals have become infected with COVID-19 in the United States, and more than 250,000
13 The Centers for Disease Control, How It Spreads (updated on Oct. 28, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how- covid-spreads.html (last visited Nov. 21, 2020). 14 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring- national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last visited Nov. 21, 2020).
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15 have died.14F A record number of Americans—more than 82,000—are currently
16 hospitalized with COVID-19.15F According to White House Coronavirus Task Force member Dr. Deborah Birx, over half of the country is now in the “red
17 zone.”16F As Dr. Birx explained, “When you look at what’s happening now, the rate of rise is dramatically different [than earlier in 2020]. . . . This is faster. It’s
18 broader. And what worries me, it could be longer.”17F
25. The University of Washington’s Institute for Health Metrics and Evaluation is currently projecting that by December 18, 2020, more than 2,300
19 Americans could be losing their lives each day.18F The Institute also predicts a total of between 471,000 and 658,000 American deaths by March 1, 2021, and
15 CDC COVID Data Tracker, https://covid.cdc.gov/covid-data- tracker/?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus% 2F2019-ncov%2Fcases-updates%2Fcases-in- us.html#cases_casesper100klast7days (last visited Nov. 21, 2020). 16 Christina Maxouris and Dakin Andone, US coronavirus hospitalizations, new cases break record for second straight day, CNN (Nov. 20, 2020), https://www.cnn.com/2020/11/20/health/us-coronavirus- friday/index.html.
17 Id. 18 Id.
19 Institute for Health Metrics and Evaluation, COVID-19 Results Briefing: the United States of America, Nov. 19, 2020, http://www.healthdata.org/sites/default/files/files/Projects/COVID/briefing_US _20201119.pdf (last visited Nov. 21, 2020).
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projects that hospital systems in most states will be under “severe stress” during December 2020 and January 2021, when President-elect Biden will take office.
26. While state and local officials have been principally responsible for implementing orders and policies to safeguard their citizens from COVID-19,
20 several federal agencies have key roles in the fight against the pandemic.19F
27. HHS, for instance, is “working together with state, local, tribal and territorial governments, public health officials, health care providers, researchers, private sector organizations and the public to execute a whole-of-America response to the COVID-19 pandemic to protect the health and safety of the
21 American people.”20F
28. Operation Warp Speed, the Trump Administration’s vaccine task force, is a partnership among the Department of Defense and components of HHS, including the CDC, the National Institutes of Health (NIH), and the
22 Biomedical Advanced Research and Development Authority (BARDA).21F
20 USA.Gov, Government Response to Coronavirus, COVID-19, https://www.usa.gov/coronavirus (providing “information from federal agencies on how they’re responding to the coronavirus pandemic”) (last visited Nov. 21, 2020). 21 HHS.gov, Coronavirus (COVID-19), https://www.hhs.gov/coronavirus/index.html (last visited Nov. 21, 2020). 22 HHS.gov, Fact Sheet: Explaining Operation Warp Speed, https://www.hhs.gov/coronavirus/explaining-operation-warp-speed/index.html (last visited Nov. 21, 2020).
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Operation Warp Speed also engages with “other federal agencies, including the Department of Agriculture, the Department of Energy, and the Department of
23 Veterans Affairs.”22F The goal of Operation Warp Speed “is to produce and deliver 300 million doses of safe and effective vaccines with the initial doses available by January 2021, as part of a broader strategy to accelerate the development, manufacturing, and distribution of COVID-19 vaccines,
24 therapeutics, and diagnostics.”23F
29. The United States Food & Drug Administration (FDA) is charged with “ensur[ing] vaccine quality, safety and effectiveness—helping to facilitate
25 the timely development of COVID-19 vaccines.”24F “Major focus areas of the FDA’s response include increasing the availability of tests, therapeutics, and other devices such as ventilators and personal protective equipment, and many
26 other important items necessary for the response.”25F
23 Id. 24 Id. 25 United States Food & Drug Administration, Coronavirus Disease 2019 (COVID-19), https://www.fda.gov/emergency-preparedness-and- response/counterterrorism-and-emerging-threats/coronavirus-disease-2019- covid-19 (last visited Nov. 21, 2020). 26 United States Food & Drug Administration, FDA COVID-19 Response, At-A-Glance Summary as of Nov. 20, 2020, https://www.fda.gov/media/137005/download (last visited Nov. 21, 2020).
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30. As explained below, President-elect Biden and Vice President-elect Harris and their transition teams do not have access to any of these federal agencies until the GSA Administrator ascertains them as the apparent winners.
B. The General Services Administration 31. Defendant General Services Administration (GSA) is an agency of the United States. It is staffed with approximately 12,000 employees. GSA provides centralized procurement for the federal government, managing and supporting products, services, and facilities used for federal agency functions. GSA manages the federal government’s real estate portfolio and serves as its
27 global supply chain manager. 26F
32. GSA plays a key role in presidential transitions. GSA “promote[s] the orderly transfer of power between presidential administrations, [by] provid[ing] the president-elect and the vice president-elect with the services and
28 facilities to assume their official duties.”27F This includes administering the more than $7 million Congress appropriated for implementing the Presidential Transition Act requirements in Fiscal Year 2021.
27 United States General Services Administration, Background, https://www.gsa.gov/about-us/mission-and-background/background (last visited Nov. 21, 2020). 28 United States General Services Administration, Governmentwide Initiatives, https://www.gsa.gov/governmentwide-initiatives (last visited Nov. 21, 2020).
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33. The GSA Administrator does not pick the winner in the Presidential election. Rather, in accordance with the Presidential Transition Act, the Administrator ascertains the “apparent successful candidate,” as discussed further below. Ascertainment by the Administrator is a necessary first step for an incoming presidential administration to receive access to federal funding, resources, agency access, and intelligence briefings.
34. Defendant Emily Murphy is the current GSA Administrator. 35. President Trump nominated Murphy as GSA Administrator during his first year in office, and she has served in that role since 2017.
C. The Presidential Transition Act of 1963 36. Prior to the Presidential Transition Act of 1963, presidential transitions primarily were staffed by volunteers and funded by the political party of the incoming President.
37. Recognizing the need for a more organized system of transition following a contentious presidential election, Congress enacted the Presidential Transition Act to “promote the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the inauguration of a new President.” Pub. L. No. 88-277, § 2.
38. Congress declared that “[t]he national interest requires that such transitions in the office of President be accomplished so as to assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal
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Government, both domestic and foreign,” and that “[a]ny disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people.” Id. “Accordingly, it is the intent of the Congress that appropriate actions”—including those reflected in the “specific provisions contained in this Act”—be “authorized and taken to avoid or minimize any disruption.” Id.
39. Under Section 3(c) of the Act, the terms “President-elect” and “Vice-President-elect” are defined as “such persons as are the apparent successful candidates for the office of the President and Vice President, respectively, as ascertained by the Administrator” following the General Election. Representative Fascell, who sponsored the 1963 legislation, described the GSA Administrator’s
29 duties under the Act as purely “ministerial.”28F The Act requires ascertainment to occur as soon as there are “apparent successful candidates,” in accordance with the Act’s purpose of ensuring a smooth transition with minimal disruption. The Act does not authorize the GSA Administrator to withhold ascertainment until there is an “actual” winner, or to delay ascertainment until states have formally certified their results or electors have officially cast their votes.
40. Section 3(a) of the Presidential Transition Act directs the GSA Administrator to provide to the President-elect and Vice-President-elect, “upon request,” necessary services and facilities, including suitable office space,
29 109 Cong. Rec. 13,348 (Jul. 25, 1963).
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compensation for transition staff, and expenses for communications services, travel, and expert or consulting services. The Act vests the President-elect and Vice President-elect with discretion to determine what transition resources are
“necessary,” and provides that they may designate assistants authorized on their behalf to make such findings of necessity.
41. After the Administrator of GSA refused for 36 days to release transition resources to President-elect George W. Bush in 2000, which was disruptive and dangerous for national security, Congress enacted the Presidential Transition Act of 2000. It amended the Presidential Transition Act of 1963 to provide that the necessary services GSA provides upon request to the President- elect include expenses during the transition “for briefings, workshops, or other activities to acquaint key prospective Presidential appointees with the types of problems and challenges that most typically confront new political appointees when they make the transition from campaign and other prior activities to assuming the responsibility for governance after inauguration.” Pub. L. 106-293, Sec. 2 (amending 3 U.S.C. § 102 note, Sec. 3(a)(8)(A)(i)).
42. In 2004, Congress amended the Act again through Section 7601 of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108- 458, which makes clear that the necessary services provided to the President-elect upon request “shall include the preparation of a detailed classified, compartmented summary by the relevant outgoing executive branch officials of
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specific operational threats to national security,” as well as military operations, “as soon as possible” after the general election. Sec. 7601 (amending 3 U.S.C. § 102 note, Sec. 3(a)(8)(A)(v)).
43. Most recently, Congress again amended the Act through the Presidential Transition Enhancement Act of 2019, enacted on March 3, 2020. It requires GSA to establish, by September 1 of a presidential election year, a memorandum of understanding (MOU) regarding facilities and services to be provided by GSA and an ethics plan to guide the conduct of those involved in the transition. Pub. L. No. 116-121, 134 Stat. 138. An additional provision mandates the development of agency succession plans for potential leadership vacancies during the transition. Id. In this most recent amendment of the Act, Congress reiterated its strong interest in ensuring orderly and efficient presidential transitions, emphasizing that its goal was to “improve the orderly transfer of the executive power during Presidential transitions.” Id.
D. Historical Context of the Presidential Transition Act: The 1960 Election 44. The 1960 general election that preceded Congress’s passage of the Presidential Transition Act of 1963 provides important context for understanding the ministerial duties the Act assigns to the GSA Administrator.
45. The bill’s sponsor, Representative Dante Fascell, commented during the debate that “I do not see any great big problem in the Administrator of the General Services Administration being unduly involved in the matter of
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determining who is the apparent winner in order to perform the ministerial functions under this act. . . . [I]n the last election we had one that was as close as we would want to have an election and nobody had any trouble in deciding who
30 was the apparent winner.”29F
46. Representative Fascell’s comment referred to the fact that John F. Kennedy was the apparent winner of the 1960 election, even though several recounts and Republican-initiated litigation continued for weeks after Election Day, and the apparent results in two states changed between Election Day and Congress’s counting of Electoral College votes.
47. Republican Party National Chairman Thruston Morton called for recounts in eleven states within three days after Election Day. Recounts proceeded in New Jersey, Texas, Illinois, and Hawaii. In Texas, the Republican Party sued to overturn the results, successfully delaying certification. In Illinois, the Republican Party petitioned the State Board of Elections for relief following a recount that confirmed Kennedy’s victory, and continued its challenge to the result until December 19, when the Electoral College formally voted for Kennedy. In Hawaii, the initial certified result (based on Nixon’s apparent victory by 141 votes) was ultimately overturned following litigation and a recount that
30 109 Cong. Rec. 13,348 (Jul. 25, 1963).
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lasted until December 30 (which led to a ruling that Kennedy had won by 115
31 votes).30F
48. Had Illinois’ election results been reversed, Nixon would have been only four votes shy of an Electoral College majority, which would have created significant uncertainty amid the other contested results and the resurgent
32 “unpledged elector movement” in certain Southern States.31F
49. The unpledged elector movement compounded the uncertainty plaguing the 1960 election. The movement encouraged “faithless electors” to “vote their consciences” rather than abiding by state-law requirements to vote for the winner of their state’s popular vote. During the 1960 election, electors in Alabama and Mississippi specifically sought election as unpledged electors rather than pledging themselves to a specific candidate, reflecting Southern Democrats’ opposition to the national party’s policies. The unpledged Alabama and Mississippi electors agreed to give their votes to Senator Byrd of Virginia,
33 but failed to convince enough others to join them to swing the election.32F
31 Todd J. Zywicki, The Law of Presidential Transitions and the 2000 Election, 2001 B.Y.U. L. Rev. 1573, 1607-11 (2001).
32 Id. at 1608-09. 33 Id. at 1611-14.
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50. On January 6, 1961, with Vice President Nixon presiding over Congress’s electoral vote-counting process, Kennedy was confirmed as the holder of a majority of Electoral College votes and the winner of the election.
51. Yet, despite all the lingering uncertainty about who would ultimately be declared the actual winner, as Congressman Fascell put it, “nobody had any trouble in deciding who was the apparent winner.” (Emphasis added.) E. Ascertainment in Subsequent Elections 52. Presidential transitions have proceeded smoothly for decades following the passage of the Presidential Transition Act in 1963. In most presidential elections, the outcome is known the day after the general election, and the transition process can begin right away.
53. However, in 2000, the GSA Administrator’s ascertainment of the apparent winner of a historically close election did not occur until 36 days after Election Day. On the night of the general election, November 7, 2000, Republicans George W. Bush and Dick Cheney claimed to have won based on an incredibly narrow victory in Florida, which would have given them the victory with 271 Electoral College votes. Democrats Al Gore and Joseph Lieberman refused to concede the election given the incredibly small margin of victory and contested Bush’s victory in Florida, prompting weeks of litigation and recounts. The election was not finally settled until the Supreme Court issued its ruling in Bush v. Gore, 531 U.S. 98 (2000), on December 12, 2020, ending a recount that
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left Bush with a lead of just 537 votes in Florida. Gore conceded to Bush the next day, December 13, 2000.
54. During the 36-day period from November 7 through December 13, 2000, the GSA Administrator, David Barram, declined to ascertain an apparent winner of the election. In his testimony to Congress on December 4, 2000, Barram described the 2000 election as an “unprecedented, incredibly close, and
34 intensely contested election, with legal action being pursued by both sides.”33F
55. But the 36-day transition delay cut President-elect Bush’s official transition period in half, which prevented Bush from accessing transition resources, including appropriated federal funds, and delayed the security clearance process for his candidates for high-level national security positions.
56. On September 11, 2001, the United States suffered the deadliest terrorist attack in human history when the Al-Qaeda terrorist group hijacked four passenger airplanes, which crashed into the World Trade Center towers, the Pentagon, and a field in Pennsylvania. Almost 3,000 people were killed, including hundreds of first responders.
57. In 2002, Congress established the National Commission on Terrorist Attacks Upon the United States, also known as the 9/11 Commission, to “make a full and complete accounting of the circumstances surrounding the attacks[.]”
34 Hearing Before the House Comm. on Gov’t Reform, Subcomm. on Gov’t Mgmt., Info., and Tech., and the U.S. House of Representatives (Dec. 4, 2000) (statement of David J. Barram, Administrator of General Services).
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Pub. L. No. 107-306, § 602 (Nov. 27, 2002). In 2004, the 9/11 Commission issued its Final Report of the National Commission on Terrorist Attacks Upon
35 the United States, also known as the 9/11 Commission Report.34F
58. The 9/11 Commission Report identified presidential transition delays as a significant national security threat. The Report pointed specifically to the 36-day delay in Bush’s transition period: “Given that a presidential election in the United States brings wholesale change in personnel, this loss of time hampered the new administration in identifying, recruiting, clearing, and
36 obtaining Senate confirmation of key appointees.”35F Unlike prior administrations, the Report noted, the Bush Administration “did not have its team on the job until at least six months after it took office,” as deputy cabinet officials were not in place until the spring of 2001 and critical subcabinet officials were
37 not confirmed until the summer.36F The Commission recommended that, “[s]ince a catastrophic attack could occur with little or no notice, we should minimize as much as possible the disruption of national security policymaking during the change of administrations . . . and allow new officials to assume their new
35 The 9/11 Commission Report, https://govinfo.library.unt.edu/911/report/911Report.pdf (last visited Nov. 21, 2020).
36 Id. at 198. 37 Id. at 422.
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38 responsibilities as quickly as possible.”37F “The outgoing administration should provide the president-elect, as soon as possible after election day, with a classified, compartmented list that catalogues specific, operational threats to
39 national security,” among other information.38F
59. The Bush Administration took these lessons to heart. On November 5, 2008—the day after Election Day—GSA Administrator James A. Williams
40 declared that Barack Obama was the “apparent winner” of the 2008 election,39F and the Bush Administration hosted Obama’s transition team at GSA
41 Headquarters that same day.40F GSA’s November 5, 2008 press release noted that it had been planning for the transition for several years, and that the agency was acting in accordance with its obligations under the Presidential Transition Act in
42 providing information and resources to the new President-elect.41F
38 Id. 39 Id. at 422-23. 40 U.S. General Services Administration, GSA Turns Over Transition HQ to New Administration, Nov. 5, 2008, https://www.gsa.gov/about- us/newsroom/news-releases/gsa-turns-over-transition-hq-to-new-administration (last visited Nov. 21, 2020). 41 Walter M. Shaub Jr., The Presidential Transition Meets Murphy’s Law, The New York Review (Nov. 21, 2020), https://www.nybooks.com/daily/2020/11/13/the-presidential-transition-meets- murphys-law/ (last visited Nov. 21, 2020). 42 GSA Turns Over Transition HQ to New Administration, supra note 38.
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60. In 2016, the Obama Administration likewise complied with its obligations under the Presidential Transition Act. On November 9, 2016—the day after Election Day—GSA Administrator Denise Turner Roth ascertained that
Donald Trump was the apparent winner. Turner’s decision was based on several objective factors: (1) a review of the results reported by every state; (2) the major news organizations that called the election for Trump; (3) Trump’s clear margin
43 of victory; and (4) the absence of voting irregularities or fraud.42F
F. The Presidential Transition Process 61. The presidential transition process is critical because it grants incoming officials access to federal agency personnel and information, as well as classified intelligence about national security threats, along with financial resources and facilities to help effectuate the transition. These critical resources allow the new administration to determine how it will implement its priorities before taking office and begin transitioning incoming officials into their new roles, while minimizing disruption and lag time after Inauguration Day.
62. John Sununu, former Chief of Staff to President George H. W. Bush, testified to Congress about the importance of the presidential transition period, explaining: “There is no time that will be as precious for transition to any new
43 Denise Turner Roth, Opinion: Obama’s GSA administrator: Presidential transition is too important to politicize, CNN (Nov. 18, 2020), https://www.cnn.com/2020/11/18/opinions/obama-gsa-administrator-transition- turner-roth/index.html (last visited Nov. 21, 2020).
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administration as these days and weeks. It is, in fact, the only time where they can focus on presentation rather than focus on fulfilling responsibilities of office. A 1-month delay now will be reflected in a 6-month to 1-year delay in getting things really started.” He further testified: “I want to emphasize that the impact of delay is not linear. A 1-day delay [during the transition period] is probably
44 equivalent—now is equivalent to 6 to 10 days of delay after Inauguration.”43F
63. Agency review teams play a critical role during the presidential transition period. These teams are comprised of individuals who visit federal agencies on behalf of the President-elect and are responsible for understanding the operations of each federal agency. These review teams gather information about federal agency operations, flag critical issues, and tee up early decisions or actions for the President-elect and new agency heads.
64. By statute, federal agencies were required to prepare and finalize briefing materials for transition-related agency review teams by no later than
45 November 1, 2020.44F “At a minimum,” the agency review briefing materials were
44 Hearing Before the House Comm. on Gov’t Reform, Subcomm. on Gov’t Mgmt., Info., and Tech., and the U.S. House of Representatives (Dec. 4, 2000) (statement of John H. Sununu, former Governor of New Hampshire and Chief of Staff to President George H. W. Bush).
45 September 4, 2020 Memorandum for the Heads of Executive Departments and Agencies from the Office of Management and Budget and GSA providing “Guidance on Presidential Transition Preparations, https://www.whitehouse.gov/wp-content/uploads/2020/09/M-20-33.pdf (last visited Nov. 21, 2020).
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to include: “(1) an overview of the organization; (2) the top five to ten most pressing operational items a new administration will have to handle immediately after Inauguration; (3) a budget overview; (4) the current leadership team; and
46 (5) Congressional considerations.”45F
65. In 2008, then President-elect Barack Obama’s transition team had 349 agency review personnel engage with 62 federal agencies. Id.
66. In 2016, then President-elect Trump’s transition team had 328
47 agency review personnel engage with 42 federal agencies.46F
67. However, in 2020, the White House directed that agency review teams may be deployed by the President-elect only after the GSA Administrator
48 ascertains the apparent winner of the election.47F As discussed further below, the GSA Administrator’s unlawful refusal to fulfill this statutory duty is hamstringing the incoming Administration’s transition efforts.
46 Id. 47 Center for Presidential Transition, What Happens During the Transition Period?, Nov. 6, 2020, https://presidentialtransition.org/wp- content/uploads/sites/6/2020/11/What-Happens-During-a-Transition-Period.pdf (last visited Nov. 21, 2020). 48 September 4, 2020 Memorandum for the Heads of Executive Departments and Agencies from the Office of Management and Budget and GSA providing “Guidance on Presidential Transition Preparations, https://www.whitehouse.gov/wp-content/uploads/2020/09/M-20-33.pdf (last visited Nov. 21, 2020) (“Agency review teams will be deployed by the President- elect or his transition team to a subset of Federal agencies immediately following the ascertainment of the election results.”).
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G. The 2020 Election 68. Before voting began for the 2020 General Election, President Trump sought to undermine voter confidence in the results by falsely claiming that
49 voting by mail would lead to rampant fraud.48F Due to the serious health risks posed by the pandemic, many states expanded access to voting by mail in 2020.
69. President Trump indicated on multiple occasions prior to the
50 election that he would be unwilling to accept the results if he did not win.49F
70. The general election was held on November 3, 2020. By November 4, Biden was projected to win enough states to carry 264 electoral votes—just six
51 shy of the number required to be elected President.50F At that point, President Trump only had a projected 217 electoral votes. As vote-counting proceeded during the following days, President Trump never gained a projected Electoral College majority.
49 Amy Gardner and Josh Dawsey, As Trump leans into attacks on mail voting, GOP officials confront signs of Republican turnout crisis, Wash. Post (Aug. 3, 2020), https://wapo.st/31WozE5.
50 See, e.g., Transcript: ‘Fox News Sunday’ interview with President Trump, Fox News (July 19, 2020), https://fxn.ws/388nCNF; Alana Wise, Trump Declines To Promise Peaceful Transfer Of Power After Election, NPR (Sept. 23, 2020), https://n.pr/3mj1B2t.
51 Jonathan Lemire, Zeke Miller, and Will Weissert, Biden wins Michigan, Wisconsin, now on the brink of White House, Associated Press (Nov. 5, 2020, https://apnews.com/article/presidency-battleground-states-races- 84ba06c8d2dd3c16434f0b9a852a5d17.
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71. By November 7, 2020, Mr. Biden was projected to win Pennsylvania and carry its 20 electoral votes. At that point, all the major news networks, including the Associated Press, ABC, CBS, CNN, NBC, and Fox
News, projected him to win at least the 270 electoral votes necessary to win the
52 presidential election.51F
72. Thereafter, on November 13, Georgia was also called for President-
53 elect Biden,52F bringing his projected total to 306 electoral votes—the same
52 Jonathan Lemire, Zeke Miller, and Will Weissert, Biden defeats Trump for White House, says ‘time to heal’, Associated Press (Nov. 8, 2020), https://apnews.com/article/joe-biden-wins-white-house-ap- fd58df73aa677acb74fce2a69adb71f9; Libby Cathey, Joe Biden Defeats Donald Trump for president in bitter and historic election, ABC News (Nov. 7, 2020), https://abcnews.go.com/Politics/joe-biden-apparent-winner- presidency/story?id=73981165; Bo Erickson, Joe Biden projected to win presidency in deeply divided nation, CBS News (Nov. 7, 2020), https://www.cbsnews.com/news/joe-biden-wins-2020-election-46th-president- united-states/; Stephen Collinson & Maeve Reston, Biden defeats Trump in an election he made about character of the nation and the President, CNN (Nov. 7, 2020), https://www.cnn.com/2020/11/07/politics/joe-biden-wins-us- presidential-election/index.html; Adam Edelman, Biden defeats Trump to win White House, NBC News projects, NBC News (Nov. 7, 2020), https://www.nbcnews.com/politics/2020-election/biden-defeats-trump-win- white-house-nbc-news-projects-n1246912; Brooke Singman & Paul Steinhauser, Biden wins presidency, Trump denied second term in White House, Fox News Projects, Fox News (Nov. 7, 2020), https://www.foxnews.com/politics/biden- wins-presidency-trump-fox-news-projects. 53 Georgia formally certified this result on November 20, 2020. Marshall Cohen, et al., Georgia’s GOP Governor and secretary of state certify Biden win, quashing Trump’s longshot attempt to overturn results, CNN (Nov. 20, 2020),
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54 number with which President Trump won the presidency in 2016.53F At the time, Trump characterized his 2016 victory as a “landslide” and later as a “MASSIVE”
55 landslide.54F
73. As of November 18, 2020, President-elect Biden has earned nearly 80,000,000 votes throughout the United States—more than any candidate in
56 history, almost 6 million more than President Trump.55F
74. Despite President-elect Biden’s evident “landslide” victory, President Trump’s campaign and others have filed approximately 18 lawsuits alleging election fraud and/or seeking to challenge ballots or delay certification
https://www.cnn.com/2020/11/20/politics/georgia-certify-secretary-of-state- raffensperger/index.html.
54 Adam Edelman, With final states called, Biden's projected Electoral College victory matches Trump's in 2016, NBC News (Nov. 13, 2020), https://www.nbcnews.com/politics/2020-election/final-states-called-biden-s- projected-electoral-college-victory-matches-n1247766.
55 Donald Trump (@realDonaldTrump), Twitter (Nov. 27, 2016), https://twitter.com/realDonaldTrump/status/928325667556548608?s=20 (last visited Nov. 21, 2020); Donald Trump (@realDonaldTrump), Twitter (Nov. 8, 2017), https://twitter.com/realDonaldTrump/status/928325667556548608?s=20 (last visited Nov. 21, 2020). 56 Nicholas Riccardi, Biden approaches 80 million votes in historic victory, Associated Press (Nov. 18, 2020), https://apnews.com/article/election-2020-joe- biden-donald-trump-politics-elections-372af3b89bc1f5f0f6d7f8c80025a9b0.
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of election results in Arizona, Georgia, Michigan, Nevada, Wisconsin, and
57 Pennsylvania.56F
75. Each of the lawsuits challenging the counting of ballots or seeking to stop the certification of election results have either been withdrawn, dismissed, do not involve enough ballots to change the electoral outcome in the state, and/or are without merit, including:
58 a. Three cases in Arizona, two of which have been withdrawn,57F including one in which a Trump campaign lawyer conceded to the court “[w]e are not alleging fraud. We are not saying anyone is trying to steal
59 60 the election.”58F The third case was dismissed on November 19, 202059F
57 See George Petras, A quick guide: Trump’s lawsuits dispute election results as presidency is called for Biden, USA Today (Nov. 18, 2020), https://www.usatoday.com/in-depth/news/2020/11/16/trump-election-lawsuits- republicans-battleground-states-vote-count/6177538002/. 58 See id. 59 Zach Montague and Alan Feuer, Trump Campaign Lawyers Step Up but Are Swiftly Knocked Down, New York Times (Nov. 20, 2020), https://www.nytimes.com/2020/11/20/us/politics/trump-election- lawsuits.html?searchResultPosition=2. 60 Order of the Superior Court of Arizona for Maricopa County dated Nov. 18, 2020, No. CV 2020-014553, https://www.clerkofcourt.maricopa.gov/Home/ShowDocument?id=1800.
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after the Attorney General of Arizona, Mark Brnovich, explained that the
61 procedure challenged was lawful;60F
b. Two cases in Georgia, one of which challenged 53 ballots and
62 was dismissed,61F and another in federal court in which the district judge denied a preliminary injunction to stop certification of the results and
63 called the requested relief “quite striking”;62F
c. Two cases in Michigan, one withdrawn on November 16,
64 2020,63F and the other withdrawn on Nov. 19, 2020, after the Wayne County
61 Letter of the Hon. Mark Brnovich to President of the Arizona State Senate Karen Fann and Speaker of the Arizona House Russell Bowers dated Nov. 12, 2020, https://www.azag.gov/sites/default/files/2020- 11/Letter%20to%20Pres.%20Fann%20%26%20Speaker%20Bowers%20RE%2 0vote%20center%20audits.pdf. 62 Petras, A quick guide, USA Today (Nov. 18, 2020), https://www.usatoday.com/in-depth/news/2020/11/16/trump-election-lawsuits- republicans-battleground-states-vote-count/6177538002/.
63 Richard Fausset and Sean Keenan, Federal judge blocks lawsuit seeking to halt certification of votes in Georgia, New York Times (Nov. 19, 2020), https://www.nytimes.com/live/2020/11/19/us/joe-biden-trump-updates/federal- judge-blocks-lawsuit-seeking-to-halt-certification-of-votes-in-georgia.
64 Katelyn Polantz, Lawsuits that tried to disrupt Biden’s wins in four states are withdrawn, CNN (Nov. 16, 2020), https://www.cnn.com/2020/11/16/politics/lawsuits-michigan-pennsylvania- wisconsin-georgia/index.html.
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Board of Canvassers certified its election results, pushing President-elect
65 Biden to a margin of victory of over 154,000 statewide;64F
d. Three cases in Nevada, one filed on Election Day that involved the closing time for polling locations; one concerning only 3,000
66 allegedly ineligible voters, in which the judge denied an injunction;65F and one in which the judge rejected a request to stop the certification of election
67 results on November 20, 2020, calling it a “shocking ask”;66F
e. Eight cases in Pennsylvania, where President-elect Biden won by a margin of more than 60,000 votes, such that state law does not
68 provide for an automatic recount.67F Four of the cases have been dismissed;
65 Melissa Quinn and Adam Brewster, Trump campaign drops Michigan lawsuit over certification of election results, CBS News (Nov. 19, 2020), https://www.cbsnews.com/news/trump-campaign-drops-election-lawsuit- michigan-certification/. 66 Petras, A quick guide, USA Today (Nov. 18, 2020), https://www.usatoday.com/in-depth/news/2020/11/16/trump-election-lawsuits- republicans-battleground-states-vote-count/6177538002/.
67 Stephanie Becker, Nevada judge denies request to halt state certification of election results, CNN (Nov. 20, 2020), https://www.cnn.com/2020/11/20/politics/nevada-election-results-republican- challenge/index.html.
68 Nicholas Reimann, Biden Now Leads in Pennsylvania by Large Enough Margin to Avoid Recount, Forbes (Nov. 13, 2020), https://www.forbes.com/sites/nicholasreimann/2020/11/13/biden-now-leads-in- pennsylvania-by-large-enough-margin-to-avoid-recount/?sh=4cf381ac213d.
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69 one involves only 600 ballots;68F and one involves fewer than 10,000 ballots postmarked before Election Day but arriving afterward that have not been
70 included in the count.69F In one case, President Trump’s attorney admitted
the campaign was not alleging voter fraud just before the Pennsylvania
71 Supreme Court ruled against the campaign in another case,70F and the district court dismissed the case on November 21, 2020, explaining that
the plaintiffs offered only “strained legal arguments without merit and
72 speculative accusations” that were “unsupported by evidence.”71F
69 Petras, A quick guide, USA Today (Nov. 18, 2020), https://www.usatoday.com/in-depth/news/2020/11/16/trump-election-lawsuits- republicans-battleground-states-vote-count/6177538002/. 70 Emily Bazelon, Trump is Not Doing Well With His Election Lawsuits. Here’s a Rundown., New York Times (Nov. 13, 2020), https://www.nytimes.com/2020/11/13/us/politics/trump-election-lawsuits.html.
71 Katelyn Polantz and Jessica Schneider, Rudy Guiliani’s day in a Pennsylvania Courtroom representing Donald Trump, CNN (Nov. 17, 2020), https://www.cnn.com/2020/11/17/politics/trump-giuliani-election- lawsuit/index.html.
72 Alan Feuer, Judge Dismisses Trump Lawsuit Seeking to Delay Certification in Pennsylvania, New York Times (Nov. 21, 2020), https://www.nytimes.com/2020/11/21/us/politics/pennsylvania-trump-court- ballots.html?auth=login-email&login=email.
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76. In sum, plaintiffs have lost over 30 cases challenging the 2020
73 election since Election Day,72F many of which include concessions by counsel that
74 their lawsuits do not allege election fraud.73F
77. Several attorneys have also voluntarily dismissed cases aimed at
75 challenging President-elect Biden’s victory,74F or have withdrawn from
76 representing the Trump campaign.75F
78. In addition, Republican legislators in Arizona, Michigan, Pennsylvania, and Wisconsin have said publicly that they will not intervene to
73 Id. 74 Nomaan Merchant, Trump’s election lawsuits plagued by elementary errors, Associated Press (Nov. 19, 2020), https://apnews.com/article/joe-biden- donald-trump-politics-lawsuits-elections-a508ebaafae82286c69eb091b75abdfc.
75 Dan Mangan, Trump backers drop court cases challenging voting results in four states, another setback in bid to undo Biden win, CNBC (Nov. 16, 2020), https://www.cnbc.com/2020/11/16/trump-backers-drop-biden-vote-challenge- case-in-wisconsin.html.
76 Allison Durkee, Trump Campaign Lawyers Quit Pennsylvania Lawsuit—Again, Forbes (Nov. 16, 2020), https://www.forbes.com/sites/alisondurkee/2020/11/16/trump-campaign- lawyers-quit-pennsylvania-lawsuit-again/?sh=e774a5b443bc.
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attempt a legally dubious appointment of alternate electors to cast electoral votes
77 for President Trump despite President-elect Biden’s victory in their states.76F
79. Notwithstanding the ongoing litigation, the dispositive states have proceeded to finalize and certify their election results, or will do so in the coming days, including:
a. Georgia. President-elect Biden won Georgia’s 16 Electoral
78 College votes by a margin of 12,670 votes.77F The results there were
79 certified on November 20, 2020, after a statewide hand recount audit;78F
77 Bob Christie and Nicholas Riccardi, GOP Leaders in 4 states quash dubious Trump bid on electors, Associated Press (Nov. 14, 2020), https://apnews.com/article/election-2020-joe-biden-donald-trump-legislature- pennsylvania-b199b2debc87fbb20612a48835bc0dba; Annie Grayer, Caroline Kelly, and Megan Vazquez, Michigan lawmakers who met with Trump say they see nothing to change election outcome, CNN (Nov. 21, 2020, https://www.cnn.com/2020/11/20/politics/michigan-house-speaker-will-meet- trump/index.html.
78 Georgia Secretary of State, Nov. 3, 2020 General Election Results, https://results.enr.clarityelections.com/GA/105369/web.264614/#/detail/5000 (last visited Nov. 21, 2020). 79 Quinn Scanlan, Georgia certifies election results, making Biden victory official, ABC News (Nov. 20, 2020), https://abcnews.go.com/Politics/georgia- secretary-state-certifies-election-results-making-biden/story?id=74315511.
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b. Michigan. President-elect Biden won Michigan’s 16 Electoral
80 College votes by a margin of 154,187 votes.79F The results are due to be
81 certified there by November 23, 2020;80F
c. Pennsylvania. President-elect Biden won Pennsylvania’s 20
82 Electoral College votes by a margin of 81,618 votes.81F The results are due
83 to be certified there by November 23, 202082F ;
80 Michigan Election Results, New York Times (Nov. 21, 2020), https://www.nytimes.com/interactive/2020/11/03/us/elections/results- michigan.html (last visited Nov. 21, 2020). 81 Grace Segers, When do states certify their election results?, CBS News (Nov. 11, 2020), https://www.cbsnews.com/news/when-do-states-certify- election-results/.
82 Pennsylvania Election Results, New York Times (Nov. 21, 2020), https://www.nytimes.com/interactive/2020/11/03/us/elections/results- pennsylvania.html (last visited Nov. 21, 2020). 83 Segers, When do states certify their election results?, CBS News (Nov. 11, 2020), https://www.cbsnews.com/news/when-do-states-certify-election- results/.
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d. Nevada. President-elect Biden won Nevada’s 6 Electoral
84 College votes by a margin of 33,596 votes.83F The results are due to be
85 certified there by November 24, 2020;84F
e. Arizona. President-elect Biden won Arizona’s 11 Electoral
86 College votes by a margin of 10,457 votes.85F The results are due to be
87 certified there by November 30, 2020;86F and
f. Wisconsin. President-elect Biden won Wisconsin’s 10
88 Electoral College votes by a margin of 20,565 votes.87F The results are due
89 to be certified there by December 1, 2020.88F
84 Arizona Election Results, New York Times (Nov. 21, 2020), https://www.nytimes.com/interactive/2020/11/03/us/elections/results- nevada.html (last visited Nov. 21, 2020). 85 Segers, When do states certify their election results?, CBS News (Nov. 11, 2020), https://www.cbsnews.com/news/when-do-states-certify-election- results/. 86 Arizona Secretary of State, 2020 General Election, available at https://results.arizona.vote/#/featured/18/0 (last visited Nov. 20, 2020). 87 Segers, When do states certify their election results?, CBS News (Nov. 11, 2020), https://www.cbsnews.com/news/when-do-states-certify-election- results/.
88 Wisconsin Election Results, New York Times (Nov. 21, 2020), https://www.nytimes.com/interactive/2020/11/03/us/elections/results- wisconsin.html (last visited Nov. 21, 2020). 89 Segers, When do states certify their election results?, CBS News (Nov. 11, 2020), https://www.cbsnews.com/news/when-do-states-certify-election- results/.
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80. President Trump’s campaign has sought a partial recount in just two
90 Wisconsin counties,89F and is permitted to request a recount in Georgia on or before November 24, 2020, even though that State just completed a statewide
91 hand count audit confirming President-elect Biden’s victory.90F But the margin of President-elect Biden’s victory in Pennsylvania is so large that there will be no automatic recount. President Trump’s campaign can secure a recount only if it
92 can demonstrate misconduct,91F which it has thus far been unable to do.
90 Jeff Zeleny and Casey Tolan, Trump campaign seeks partial recount in Wisconsin, CNN (Nov. 18, 2020), https://www.cnn.com/2020/11/18/politics/trump-campaign-wisconsin- recount/index.html. The Wisconsin recounts must be completed before December 1, 2020. Nicole Sganga, Melissa Quinn, and Adam Brewster, Trump campaign to request recount of two Wisconsin counties, CBS News (Nov. 18, 2020), https://www.cbsnews.com/news/trump-campaign-to-request-recount-of- two-wisconsin-counties/.
91 Dartunorro Clark, Georgia hand count of votes affirms Biden’s narrow victory over Trump, NBC News (Nov. 19, 2020), https://www.nbcnews.com/politics/2020-election/georgia-expected-release- results-trump-biden-hand-recount-n1248234.
92 Nicholas Reimann, Biden Now Leads in Pennsylvania by Large Enough Margin to Avoid Recount, Forbes (Nov. 13, 2020), https://www.forbes.com/sites/nicholasreimann/2020/11/13/biden-now-leads-in- pennsylvania-by-large-enough-margin-to-avoid-recount/?sh=4cf381ac213d.
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81. Leaders from both major political parties have acknowledged that
93 President-elect Biden won the election and have congratulated him. 92F
82. On November 22, 2020, Senator Kevin Kramer, Republican of North Dakota, said that he has instructed his staff to cooperate with any outreach from President-elect Biden’s transition team, stating that it was “past time” for President Trump to do the same and that the GSA should ascertain Biden’s win on Monday, November 23 so that the transition can go forward “because it didn’t
94 happen last Monday morning.”93F
83. On November 12, 2020, the Cybersecurity and Infrastructure Agency of the United States Department of Homeland Security issued a Joint Statement confirming that “[t]he November 3rd election was the most secure in American history,” and “[t]here is no evidence that any voting system deleted or
95 lost votes, changed votes, or was in any way compromised.”94F
93 Jacob Jarvis, The Republicans Calling on Trump to Concede, Congratulating Biden, Newsweek (Nov. 17, 2020), https://www.newsweek.com/republicans-calling-trump-concede-1548016.
94 Jason Lemon, GOP Senator Has Instructed Staff to Cooperate With Biden Transition, Says It’s ‘Past Time’ for Trump to Do Same, Newsweek (Nov. 22, 2020), https://www.newsweek.com/gop-senator-has-instructed-staff- cooperate-biden-transition-says-its-past-time-trump-do-same-1549338. 95 Joint Statement from Elections Infrastructure Government Coordinating Council and the Election Infrastructure Sector Coordinating Executive Committees, Nov. 12, 2020, https://www.cisa.gov/news/2020/11/12/joint- statement-elections-infrastructure-government-coordinating-council-election (last visited Nov. 21, 2020).
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84. Despite overwhelming evidence that President-elect Biden and Vice President-elect Harris are the “apparent successful candidates” in the November 3, 2020 general election for President and Vice President, Defendant Emily
Murphy, the GSA Administrator, has refused to perform her duty to “ascertain” them as such and allow the transition process mandated by the Presidential Transition Act to commence. This unlawful act is depriving President-elect Biden and Vice-President-elect Harris of necessary funding and access to classified
96 information.95F
85. Defendant Murphy has likewise failed to make any public statement explaining her refusal to follow the Presidential Transition Act.
86. Press reports indicate that Defendant Murphy contacted David Barram—the GSA Administrator during the 2000 election—before the election,
97 to discuss how he handled that year’s contested election.96F
87. But the 2020 election is fundamentally different than the 2000 election, which involved a claimed Electoral College victory of only 271 votes;
96 Michael D. Shear, Maggie Haberman, and Michael Crowley, Trump Appointee Stands Between Biden’s Team and a Smooth Transition, New York Times, Nov. 9, 2020, https://www.nytimes.com/2020/11/09/us/politics/emily- murphy-trump-biden.html.
97 Kristen Holmes and Jeremy Herb, ‘It’s a terrible situation’: Inside a government bureaucrat’s pressure-filled decision to delay the transition, CNN (Nov. 19, 2020), https://www.cnn.com/2020/11/18/politics/biden-transition- trump-delay/index.html.
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hinged on the recount of votes in only one state, Florida; and resulted in a victory based on a mere 537 votes. As former GSA Administrator Barram has explained: “In 2000, there was no clear winner, and both Gore and Bush knew it. This is
98 different.”97F
88. Likewise, the close and contested 1960 election illustrates that any alleged “uncertainty” about the outcome of the 2020 election is not a valid basis to withhold ascertainment. In 1960, recounts proceeded in four states, Republican-initiated litigation continued for weeks after Election Day resulting in a successful delay of certification of election results in Texas and the overturning of the certified election results in Hawaii (with a victory based on a
99 mere 115 votes), and the resurgent “unpledged elector movement” in the South.98F Yet, in the words of the sponsor of the Presidential Transition Act, “nobody had
100 any trouble in deciding who was the apparent winner.”99F
98 Andrea Shalal and Trevor Hunnicutt, Amid coronavirus spike, pressure grows on U.S. agency to approve Trump-to-Biden transition, Reuters (Nov. 18, 2020), https://www.reuters.com/article/us-usa-election-transition/amid- coronavirus-spike-pressure-grows-on-u-s-agency-to-approve-trump-to-biden- transition-idUSKBN27Y2YS. 99 Todd J. Zywicki, The Law of Presidential Transitions and the 2000 Election, 2001 B.Y.U. L. Rev. 1573, 1607-11 (2001).
100 109 Cong. Rec. 13,348 (Jul. 25, 1963).
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89. Despite all of the foregoing, and even though the Biden-Harris
101 transition team has announced the members of its agency review teams,100F it has been refused access to federal government agencies and their information, and cannot begin sending its agency review teams to meet with those agencies until the GSA Administrator’s ascertainment.
90. Among the agencies to which the Biden-Harris transition team has been denied access is HHS, which is overseeing the federal government’s response to COVID-19. HHS Secretary Alex Azar has refused to work with President-elect Biden’s agency review team until after the GSA Administrator’s
102 ascertainment.101F On November 16, 2020, Secretary Azar stated that President- elect Biden’s incoming team would not be informed of vaccine distribution plans until after the GSA Administrator’s ascertainment, claiming that it would be inappropriate for HHS to work with President-elect Biden’s team on the issue
101 Biden-Harris Transition, Agency Review Teams, https://buildbackbetter.com/the-transition/agency-review-teams/ (last visited Nov. 21, 2020).
102 Kristen Holmes and Devan Cole, HHS secretary says department won’t work with Biden’s team until federal agency determines he won, CNN (Nov. 19, 2020), https://www.cnn.com/2020/11/18/politics/health-and-human-services- staffers-transition-biden/index.html (“‘We’ve made it very clear that when GSA makes a determination, we will ensure complete, cooperative professional transitions and planning,’ Azar said at a briefing.”).
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because “GSA has to make a determination that a transition is in effect, [and] that
103 determination hasn’t been made.”102F
91. President-elect Biden and his agency review team have also been denied access to the dozens of other federal agencies currently responding to the
104 COVID-19 pandemic.103F
92. Dr. Rick Bright, a member of President-elect Biden’s COVID-19 Advisory Board, publicly stated: “We haven’t been able to sit down with the Trump Administration at all, to be able to understand what plans are already in place, where the gaps are, where help is needed, and how we can make sure there’s a smooth hand-off after January 20, where the bulk of these vaccines will
105 be administered after that date.”104F President-elect Biden’s COVID-19 advisory board also stressed their lack of real-time access to data and information on the
103 Good Morning America, Secretary of health and human services talks vaccine progress, Nov. 16, 2020, https://www.goodmorningamerica.com/news/video/secretary-health-human- services-talks-vaccine-progress-74229545. 104 USA.Gov, Government Response to Coronavirus, COVID-19, https://www.usa.gov/coronavirus (providing a list of federal government agencies and what they are doing to respond to the coronavirus pandemic) (last visited Nov. 21, 2020).
105 Holmes and Cole, note 102 supra.
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supply of therapeutics, testing supplies, personal protective equipment,
106 ventilators, hospital bed capacity, or the Strategic National Stockpile.105F
93. Nor has President-elect Biden been given access to the Trump Administration’s vaccine task force, Operation Warp Speed, which is comprised of officials from multiple federal agencies. As Biden explained to a bipartisan group of state governors: “Unfortunately because of the lack of . . . ascertainment by the GSA my transition team hasn’t been able to get access to information we need to be able to deal with everything from testing and guidance to the all
107 important issue of vaccine distribution and vaccination.”106F “We haven’t been
108 able to get into ‘Operation Warp Speed.’”107F Instead of having real-time access to the critical, life-saving information necessary to launch an effective presidential transition amidst a global pandemic, President-elect Biden is left to
106 Id. 107 Courtney Buble, Biden Team Says Transition Delay Could Hinder Vaccine Distribution, Government Executive (Nov. 19, 2020), https://www.govexec.com/management/2020/11/biden-team-says-transition- delay-could-hinder-vaccine-distribution/170205/. 108 Id.
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obtain COVID-19 information through “back-channels,” if possible, until
109 ascertainment occurs.108F
94. Dr. Anthony S. Fauci, the federal government’s top infectious disease expert, has expressed concern about the transition delay caused by Defendant Murphy’s unlawful withholding of ascertainment. As Dr. Fauci explained, the COVID-19 vaccines that are in development “are effective. We want to get it approved [by the FDA] as quickly as we possibly can. We want to get doses to people starting in December, and then we want to really get the ball rolling as we get into” the first few months of 2021, when Biden and Harris will
110 take office.109F “We want a smooth process for that,” Fauci said. “And the way you do that is by essentially having the [outgoing and incoming administrations]
111 speak to each other and exchange information.”110F Fauci, who has served under six presidential administrations and been a part of five transitions, likened the transition to a relay race: “You don’t have the person running stop and then have
109 Kristin Holmes, Ellie Kaufman and Jeremy Herb, Biden team seeks Covid-19 back-channels with transition locked out, CNN (Nov. 13, 2020), https://www.cnn.com/2020/11/13/politics/joe-biden-coronavirus- team/index.html. 110 Quint Forgey, Fauci warns that White House transition delays could slow vaccine rollout, Politico (Nov. 16, 2020), https://www.politico.com/news/2020/11/16/fauci-transition-delays-vaccine- rollout-436759. 111 Id.
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the next person start from a stop. You’re all running together and you pass the
112 baton.”111F
95. President-elect Biden frankly stated, “More people may die if we
113 don’t coordinate.”112F
96. Dr. Celine Gounder, who is on Biden’s COVID-19 Advisory Board and is an infectious disease specialist at the NYU Grossman School of Medicine, explained: “The fact that the GSA has not followed through with ascertainment of the election results is really a major impediment to us because we’re not able to be on the inside of these very important discussions in terms of how these different vaccines are going to be distributed.” She emphasized that “[i]t’s not enough to have a safe and effective vaccine, you then need to get it into the arms of people for this to work,” “[a]nd the logistics of vaccinating 330 million Americans over the coming year or more is really a massive undertaking unlike anything people in this country have seen since the days of the polio vaccine.” She further explained, “[t]he longer we wait on transition the more people will
114 get infected and die.”113F
112 USA Today, Dr. Anthony Fauci on presidential transitions: You don’t want to miss a step, https://www.msn.com/en-us/news/politics/dr-anthony-fauci- on-presidential-transitions-you-dont-want-to-miss-a-step/vi-BB1b8wxo. 113 Buble, , note 107 supra.
114 Noah Higgins-Dunn, Biden COVID advisor says more people ‘will get infected and die’ the longer Trump delays transition, CNBC (Nov. 19, 2020),
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97. Operation Warp Speed’s chief science advisor, veteran pharmaceuticals executive Dr. Moncef Slaoui, has recognized the potential deadly consequences of the President-elect’s lack of access and called on the
White House to allow Operation Warp Speed to make contact with Biden’s team, calling the vaccine project’s interruption “a matter of life and death for thousands
115 of people.”114F
98. The American Hospital Association, the American Medical Association, and the American Nurses Association have all similarly urged the Trump Administration to work closely with the Biden transition team and share all critical information related to COVID-19. As these venerable institutions explained: “Confronting the challenges of the pandemic is imperative to saving American lives. Real-time data and information on the supply of therapeutics, testing supplies, personal protective equipment, ventilators, hospital bed capacity and workforce availability to plan for further deployment of the nation’s assets needs to be shared to save countless lives. All information about the capacity of the Strategic National Stockpile, the assets from Operation Warp Speed, and plans for dissemination of therapeutics and vaccines needs to be shared as quickly
https://www.cnbc.com/2020/11/19/coronavirus-biden-covid-advisor-says-more- people-will-get-infected-and-die-the-longer-trump-delays-transition-.html . 115 Financial Times, US vaccine tsar calls on White House to allow contact with Biden, Nov. 13, 2020, https://www.ft.com/content/1ce353bd-45fb-47f4- 861f-3deaa4965b61 (last visited Nov. 21, 2020).
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as possible to ensure that there is continuity in strategic planning so that there is no lapse in our ability to care for patients. As providers of care for all Americans, we see the suffering that is occurring in our communities due to COVID-19. We see families who have lost both parents from COVID- 19; we see children suffering from long-term effects due to a COVID-19 infection; and we see minority populations disproportionately suffering from the devastation of the
COVID-19 pandemic. It is from this front line human perspective that we urge
116 you to share critical data and information as soon as possible.”115F
99. President-elect Biden also lacks access to high-level national security briefings. The Office of the Director of National Intelligence (ODNI), which serves as the head of the intelligence community and is the principal advisor to the President, the National Security Council, and the Homeland Security Council for intelligence matters related to national security, has stated that “ODNI follows the statutory direction provided in the Presidential Transition Act, which requires ascertainment of the candidate by the administrator of GSA prior to supporting a potential presidential transition.” ODNI has made clear that
116 Letter from American Hospital Association, the American Medical Association, and the American Nurses Association, Nov. 17, 2020, https://www.aha.org/lettercomment/2020-11-17-aha-ama-ana-urge-trump- administration-work-biden-transition-team-share (last visited Nov. 21, 2020).
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it will not have “contact with any transition team until notified by the GSA
117 Administrator.”116F
100. President-elect Biden has also been denied access to the President’s
118 Daily Brief, which provides daily high-level intelligence reporting.117F This lack of access to security briefings and intelligence is precisely what the 9/11 Commission Report warned against, finding that President Bush’s truncated transition period in 2000 “hampered” the administration in placing key personnel in national security positions and adequately assessing national security threats.
101. On November 23, 2020, over 100 former senior national security officials who served in Republican administrations from Reagan to Trump, or as Republican Members of Congress, issued a statement that the Trump Administration’s refusal to allow for an orderly transition “constitutes a serious threat to America’s democratic process and to our national security,” particularly “at a time when the U.S. confronts a global pandemic and faces serious threats
119 from global adversaries terrorist groups, and other forces.”118F “The delay in
117 Grace Segers, What is the GSA, and what role does it play in the presidential transition, CBS News (Nov. 12, 2020), https://www.cbsnews.com/news/gsa-general-services-administration- presidential-transition/. 118 Id.
119 Tom Hamburger and Ellen Nakashima, Republican national security experts call on Trump to concede, begin transition, The Washington Post (Nov. 23, 2020), https://www.washingtonpost.com/politics/trump-concede- republicans-national-security/2020/11/23/af5e6a36-2d3c-11eb-860d-
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allowing transition teams to meet and confer with officials on the Coronavirus Task Force and at the National Security Council, the Departments of State, Defense, and Homeland Security, and the other departments and agencies critical to U.S. national security means America’s security when it assumes power in 59
120 days.”119F
102. The GSA Administrator’s refusal to ascertain Biden and Harris as the “apparent successful candidates” has also resulted in the withholding of approximately $7.3 million for the incoming Administration’s use for transition
121 purposes.120F As a result, instead of being able to focus full-time on their transition as contemplated by the Presidential Transition Act, the Biden-Harris team is
f7999599cbc2_story.html; Statement by Former National Security Officials, https://context- cdn.washingtonpost.com/notes/prod/default/documents/2a31ebe4-3e9d-47c6- 976c-6a2d4e8c1efd/note/5bf389de-2914-4109-9d14-26b6fe1d45f2.#page=1.
120 Id. 121 Memorandum of Understanding Between the General Services Administration and Joseph R. Biden, Jr., Part II—Transition, https://www.eenews.net/assets/2020/10/29/document_gw_02.pdf.
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instead being forced to divert valuable time and energy to post-campaign
122 fundraising to procure private funds for their transition needs.121F
H. Harms to the Plaintiff States from Defendants’ Refusal to Comply with the Presidential Transition Act 103. The Electoral College system was established in the United States Constitution for the election of the President and Vice President. U.S. Const. art. II, § 1, cl. 2; id. amend. XII. Article II provides that the President and Vice President are to be elected by Electors appointed by the States; that the number of Electors to be appointed from each State is to equal the number of Senators and House members representing the State in the Congress; and that the States’ legislatures are to determine the manner of appointing the Electors. Every State has chosen to appoint its Electors based on the popular vote within that State. The candidate that receives a majority of those Electors’ votes wins the presidency.
104. The States have a sovereign interest in their constitutional prerogative to elect the President and Vice President, and a corresponding interest in a smooth transition of power once an apparent winner is ascertainable based on the States’ Electoral College votes, as contemplated by the Presidential
Transition Act.
122 Arlette Saenz, Jeff Zeleny and Sara Mucha, Biden Making Fundraising Push as Trump Administration Blocks Funding, CNN (Nov. 20, 2020) https://www.cnn.com/2020/11/20/politics/biden-fundraising- transition/index.html (discussing an email from President-elect Biden’s transition team to donors stating that “[w]ithout ascertainment, we need to fund the transition ourselves, and that’s why we’re reaching out to you today”).
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105. The States also have a sovereign interest in the exercise of their police powers to respond to the COVID-19 pandemic, including by implementing health and safety requirements and in coordinating and participating in the distribution of the COVID-19 vaccines. States have been at the forefront of the fight against COVID-19, working tirelessly to protect and care for their residents during this ongoing public health crisis. The States’ ability to effectively exercise their police powers to protect the health and safety of their citizens in response to the COVID-19 pandemic, particularly with respect to vaccine distribution, is dependent upon the smooth transition required by the Presidential Transition Act. Fulfillment of the Act’s requirements would allow the incoming Biden-Harris Administration to gain access to critical information, including the Trump Administration’s vaccine manufacturing and distribution plans, and to begin coordinating with key federal agencies and officials on these plans to ensure the rapid and successful deployment of forthcoming COVID-19 vaccines. Indeed, the States have been actively working with the federal government over the last several months to plan for the distribution of a COVID-19 vaccine when one becomes available. Given the increasing death rates of Americans as a result of COVID-19, including in the Plaintiff States, the States have no greater sovereign interest than in ensuring that the COVID-19 vaccines are rapidly deployed at the earliest possible date. By hampering the incoming Administration’s ability to access this critical information concerning the vaccines and their manufacturing
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and deployment, and to coordinate with key federal agencies and officials, the GSA Administrator is infringing on the States’ sovereign police powers and risking countless American lives.
106. The States also have proprietary interests threatened by the GSA Administrator’s refusal to follow the Presidential Transition Act. The States anticipate a cascade of direct economic injuries resulting from the
Administrator’s refusal to ascertain President-elect Biden and Vice President- elect Harris as the “apparent successful candidates” and allow them to access the vital information necessary for an effective response to the COVID-19 pandemic. The Plaintiff States already face dramatically increased public health expenditures as a result of the pandemic, which will only further increase with every day of delay in planning and coordinating the eventual distribution of the vaccines. Moreover, because communities of color, who are more likely to experience poverty, are among those hardest hit by COVID-19, the Plaintiff States expect their Medicaid expenditures to continue to increase the longer a COVID-19 pandemic persists and vaccine distribution is delayed.
107. In addition, delay in the planning and coordination for the distribution of vaccines will prolong restrictions on commercial and business activities, which are already crippling the States’ tax revenues. Every day of vaccine delay costs the States income, business, and sales taxes that are collected from the economic activity of their citizens. It also costs the States additional
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unemployment insurance benefits that must be paid to those who are prevented from resuming their occupations. In addition to impacting the States’ proprietary interests, these significant tax revenue shortfalls also threaten the States’ sovereign and quasi-sovereign interests in funding police, fire, and emergency services to protect their residents.
108. The States also have sovereign and quasi-sovereign interests in protecting the health and welfare of their residents, which are currently being impeded in numerous ways by the GSA Administrator’s refusal to ascertain that Biden and Harris are the apparent winners of the presidential election. Defendants’ violation of the Presidential Transition Act blocks the incoming Administration’s access to information about the capacity of the Strategic National Stockpile amid skyrocketing hospitalization rates; delays their ability to coordinate with current agency officials on the development of uniform policies to address the pandemic as recommended by Dr. Anthony S. Fauci, Director of the National Institute of Allergy and Infectious Diseases and the federal government’s top infectious disease expert; delays their coordination with HHS and other federal agency officials on COVID-19 testing and drug therapies; increases the risk to national security by depriving the incoming Administration of access to high-level security briefings; and creates vulnerabilities associated with perceived confusion in national leadership by the international community.
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Each of these harms will directly impact the health and safety of the States’ residents.
109. These harms are predictable, and many of them informed Congress’s passage of the Presidential Transition Act, which expressly references and seeks to address concerns related to public safety and national security. The text of the Presidential Transition Act explicitly warns that “[a]ny disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people.” Pub. L. No. 88-277, 78 Stat. 153, § 2. This is why the Act requires, among other things, that classified briefings on national threats and military and covert operations “shall be provided to the President-elect as soon as possible after the date of the general elections.” Section 7601 of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458.
V. CAUSES OF ACTION
CLAIM I
Violation of the Administrative Procedure Act, Section 706(1)— Agency Action Unlawfully Withheld or Unreasonably Delayed 110. Plaintiffs reallege the foregoing allegations as if fully set forth herein.
111. Under the Administrative Procedure Act, a reviewing court “shall . . . compel agency action unlawfully withheld or unreasonably delayed[.]” 5 U.S.C. § 706(1). Agency action may be unlawfully withheld or unreasonably
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delayed where, inter alia, delay would place human health or welfare at stake; the delayed action is a high agency priority; delay prejudices important or extensive interests; or Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed. See Telecommunications Research & Action Center v. F.C.C., 750 F.2d 70, 79–80 (D.C. Cir. 1984) (“TRAC”); Agua Caliente Tribe of Cupeno Indians of Pala Reservation v.
Sweeney, 932 F.3d 1207, 1216 n.7 (9th Cir. 2019). The court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.” TRAC, 750 F.2d at 80.
112. The Presidential Transition Act of 1963, as amended, creates a mandatory, nondiscretionary duty on the part of the GSA Administrator to “ascertain[]” the “apparent successful candidates for the office of the President and Vice President, respectively . . . following the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2.” Such ascertainment entitles the apparent successful candidates to receive certain information and resources necessary to ensure a smooth presidential transition and minimize disruption, without undue delay.
113. The 2020 General Election was held on November 3, 2020. 114. By November 7, 2020, it was apparent that Joseph R. Biden, Jr. and Kamala D. Harris were the successful candidates for the office of President and
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Vice President, respectively, based on reported vote totals from States with a sufficient number of Electoral College votes to determine the outcome of the election. The passage of time has only confirmed and bolstered this conclusion, as states reported additional vote counts, increasing President-elect Biden and Vice President-elect Harris’s Electoral College vote total from 273 to the current total of 306, while President Trump’s Electoral College vote total stands at just
232 votes.
115. The GSA Administrator has failed to perform her duty to ascertain Biden and Harris as the apparent winners of the 2020 General Election, in violation of the text and purpose of the Presidential Transition Act.
116. The GSA Administrator lacks discretion to decline to ascertain Biden and Harris as the apparent winners of the 2020 General Election under the circumstances alleged herein.
117. The GSA Administrator’s failure to perform her duty is causing ongoing harm to the States, their residents, and the nation as a whole by depriving the incoming presidential administration of critical information, funds, and agency access, including information needed to safeguard national security and effectively address the COVID-19 pandemic and over $7 million appropriated by Congress for the purpose of carrying out the presidential transition. The GSA Administrator’s delay in ascertainment also threatens to delay the appointment and onboarding of critical personnel within the Executive Branch who will be
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responsible for issues related to national security, the COVID-19 pandemic, and other issues of paramount national concern.
118. A writ of mandamus is warranted to compel the GSA Administrator to ascertain Biden and Harris as the apparent successful candidates for President and Vice President, respectively, and to compel Defendants to otherwise fulfill their duties under the Presidential Transition Act.
119. Absent declaratory relief and a writ of mandamus and/or injunctive relief compelling Defendants to fulfill their duties under the Presidential Transition Act, the States and their residents will be immediately, continuously, and irreparably harmed by Defendants’ illegal actions.
CLAIM II Violation of the Administrative Procedure Act, Section 706(2)— Agency Action Contrary to Law 120. Plaintiffs reallege the foregoing allegations as if fully set forth herein.
121. Under the Administrative Procedure Act, a reviewing court “shall . . . hold unlawful and set aside agency action” that is “in excess of statutory jurisdiction, authority, or limitations[.]” 5 U.S.C. § 706(2)(C).
122. The Presidential Transition Act of 1963, as amended, creates a mandatory, nondiscretionary duty on the part of the GSA Administrator to “ascertain[]” the “apparent successful candidates for the office of the President and Vice President, respectively . . . following the general elections held to
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determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2.”
123. The 2020 General Election was held on November 3, 2020.
124. By November 7, 2020, it was apparent that Joseph R. Biden, Jr. and Kamala D. Harris were the successful candidates for the office of President and Vice President, respectively, based on reported vote totals from States with a sufficient number of Electoral College votes to determine the outcome of the election. The passage of time has only confirmed and bolstered this conclusion, as states reported additional vote counts, increasing President-elect Biden and Vice President-elect Harris’s Electoral College vote total from 273 to the current total of 306, while President Trump’s Electoral College vote total stands at just 232 votes.
125. The GSA Administrator has decided not to ascertain Biden and Harris as the apparent winners of the 2020 General Election despite the overwhelming clarity of their victory, in violation of the text and purpose of the Presidential Transition Act.
126. The GSA Administrator lacks discretion to decline to ascertain Biden and Harris as the apparent winners of the 2020 General Election under the circumstances alleged herein.
127. Absent declaratory relief invalidating the GSA Administrator’s decision not to ascertain Biden and Harris as the apparent winners of the 2020
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General Election as a violation of the Presidential Transition Act and/or injunctive relief compelling Defendants to fulfill their duties under the Presidential Transition Act, the States and their residents will be immediately, continuously, and irreparably harmed by Defendants’ illegal actions.
CLAIM III
Violation of the Administrative Procedure Act, Section 706(2)— Arbitrary and Capricious Agency Action 128. Plaintiffs reallege the foregoing allegations as if fully set forth herein.
129. Under the Administrative Procedure Act, a reviewing court “shall . . . hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious where, inter alia, the agency fails to “articulate a satisfactory explanation for its action,” and reviewing courts “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29-30, 43 (1983).
130. The GSA Administrator’s decision not to ascertain Biden and Harris as the apparent winners of the 2020 General Election is arbitrary and capricious because it is not supported by any reasoning whatsoever. The GSA Administrator has refused to publicly provide any explanation for her decision, nor has she identified any factors she considered in making her decision. The GSA
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Administrator has also failed to disclose whether she is acting at President Trump’s direction in refusing to ascertain Biden and Harris as the apparent winners of the 2020 General Election. To the extent the GSA Administrator has any discretion in deciding whether to ascertain the apparent winners, she has abused that discretion and acted arbitrarily and capriciously by failing to provide any explanation for her decision that could provide a basis for judicial review.
131. Even if the GSA Administrator were to provide a judicially reviewable explanation for her decision, the facts and circumstances alleged herein demonstrate that the GSA Administrator lacks discretion to refuse ascertainment, particularly in light of Biden and Harris’s clear margin of victory based on reported vote totals, the unanimous conclusions of major news organizations that Biden and Harris had won, and the absence of any credible evidence of widespread voting irregularities or fraud.
132. Absent declaratory relief invalidating the GSA Administrator’s decision not to ascertain Biden and Harris as the apparent winners of the 2020 General Election as a violation of the Presidential Transition Act and/or injunctive relief compelling Defendants to fulfill their duties under the Presidential Transition Act, the States and their residents will be immediately, continuously, and irreparably harmed by Defendants’ illegal actions.
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VI. PRAYER FOR RELIEF WHEREFORE, the Plaintiff States request that the Court enter a judgment against Defendants and award the following relief:
1. A declaration that the GSA Administrator has unlawfully withheld or unreasonably delayed ascertainment of Joseph R. Biden, Jr. and Kamala D. Harris as the apparent successful candidates for President and Vice President, respectively, in violation of the Presidential Transition Act;
2. A declaration that the GSA Administrator’s decision not to ascertain Joseph R. Biden, Jr. and Kamala D. Harris as the apparent successful candidates for President and Vice President, respectively, is contrary to law, ultra vires, arbitrary, and capricious;
3. A writ of mandamus to compel the GSA Administrator to ascertain Joseph R. Biden, Jr. and Kamala D. Harris as the apparent successful candidates for President and Vice President, respectively, and to compel Defendants to provide the information and resources to which Biden and Harris are entitled under the Presidential Transition Act;
4. Preliminary and permanent injunctive relief requiring the GSA Administrator to ascertain Joseph R. Biden, Jr. and Kamala D. Harris as the apparent successful candidates for President and Vice President, respectively, and to provide the information and resources to which they are entitled as such under the Presidential Transition Act;
5. The Plaintiff States’ costs and reasonable attorneys’ fees; and
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6. Such additional relief as the interests of justice may require. DATED this ___ day of ______, 2020.
ROBERT W. FERGUSON Attorney General
/s/ Kristin Beneski KRISTIN BENESKI, WSBA #45478 LAURYN K. FRAAS, WSBA #53238 BRIAN J. SUTHERLAND, WSBA #37969 Assistant Attorneys General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744 [email protected] [email protected] [email protected] Attorneys for Plaintiff State of Washington
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