FROM:Rep.LizCheney (R-WY) TO: HouseRepublicanColleagues DATE: January 3, 2021 RE:2020 PresidentialElection Challenges in Arizona, Georgia,Michigan,Nevada,Pennsylvania and Wisconsin, and Our ConstitutionalProcess

2020 Presidential Election Challenges in Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin, and Our Constitutional Process

In connectionwith our recent Conferencemeeting,a numberof membershave requestedfurther informationon how preciselyArticle IIand the 12th Amendmentto our ConstitutionaddressCongress’ role and responsibilitiesincountingelectoralvotes. Others have soughtadditionalinformationon the electionchallengesin each of the six states at issue,and how the judgeshearingthesecaseshaveruled. The followingsummarybeginsby addressingthe Constitutionalissues,then providesexcerptsfrom and a descriptionof the principaljudicial decisionsin each of the states. As you will see,there is substantial reasonfor concernabout the precedentCongressionalobjectionswillset here. By objectingto electoral slates,membersare unavoidablyassertingthat Congresshas the authorityto overturnelectionsand overrulestateand federalcourts. Such objectionsset an exceptionallydangerousprecedent,threatening to steal states’ explicit constitutionalresponsibilityfor choosingthe Presidentand bestowingit insteadon Congress. Thisis directlyat odds with the Constitution’sclear text and our core beliefs as Republicans. Democratshave longattempted,unconstitutionally,to federalizeevery elementof our nation—including elections. Republicansshouldnot embraceDemocrats’unconstitutionalpositionon theseissues.

The recentproposalfor a new“Commission”iseven more problematic. It is not reasonableto anticipatethat any commissionso formed could wrap up its work in 10 days;indeed,the subsequent debate at both the state and federal levelwould likelyrequiremonths. Didthose proposinga new commissionrealizethat they were in essenceproposingto delay the inaugural? Didthey meanto set up a newfuture precedentwhere the inauguralis delayedand we havean “ActingPresident?” For how long? Who decides when that processis over? Will that requireanother Act of Congress? Could the ActingPresidentveto any such future Congressionalaction? If Congresshas authorityto create such a commissionnow,arestateelections,recountsand state lawlegalchallengesjust “make-work”until Congressgetsaroundto investigatingand decidingwho shouldbe President? Memberswho support the new commissionproposalmay need to answer each of these questions. And in particular,Members shouldbe preparedto answer how such a commissionwould bejustified by the actualtext of our foundingdocuments.

ArticleIIand the 12thAmendment

Article IIand the 12th Amendmentto our Constitutiongovern how our Republicselectsthe Presidentof the UnitedStates. Althoughthe Framersconsideredwhether to confer the power to select the Presidentupon the Congressof the UnitedStates,that proposalwas specificallyrejected. Instead, the Framersconferredthat specific power upon the Statesand the People. Article IIcreates the Electoral College,and providesthat “[e]achstate shallappoint,in such manner as the Legislaturethereofmay direct, a number of electors,equal to the wholenumber of Senatorsand Representativesto which the Statemaybeentitledin the Congress.” “The personhavingthe greatest Numberof [ElectoralCollege] votes for President,shall be the President.” In accordancewithArticle II,everyStateLegislaturehas enacted a set of rules governingthe manner in which the electionof the Presidentin that Statewill beconductedand how electors willbe selected. Those lawsnotonly instructstateelectionofficials howto conductelections(and explicitly delegateauthority to thoseofficialsfor that purpose),but also set forth a statelaw processfor challengingan electionwhen problemsarise. The legalprocessesfor challengingthe electionvary state to state,but generallyprovide a procedurefor recountsand audits,and an opportunityto litigatedisputed issuesin statecourt. In certain circumstances,itmaybe possibleto bring an appropriateclaim in Federal Court as well(for example,if a Statehas violated the U.S.Constitutionor federallaw),but FederalCourts are boundto observethe Constitutionallimits on their jurisdiction(under Article III).

BecauseArticle IIcommitsto the Statesthe authority and responsibilityto conductthe election for President,and becauseStateLegislatureshave(consistentwith ArticleII)provideda specific manner for challenginga Presidentialelection,allegationsof electionirregularities,fraud or other illegalitymustbe resolvedin accordancewith those statelaws. This is our Constitutionalprocessand the rule of law. To date,dozens of cases challengingthe 2020 Presidentialelectionhavebeen litigatedin the six statesat issue. Manyjudges (includingmultiplefederaljudges appointedby PresidentTrump himself),have alreadydirectlyaddressedthe subjectmatterof objectionsmembersintendto make. For instance, multiplejudgeshaveruledstateelectionofficials were not acting contraryto state electionlaws. And multiplejudgeshavefound that allegationsabout Dominionvotingmachinesand other issuesare not supportedby evidence. (See the excerpts and summariesin SectionsI and IIbelow.)

Inadditionto committingthe powerand responsibilityfor selectingthe Presidentto the Peopleof the States,Article IIand the 12thAmendmentalso explicitlyidentifythe exceptionallylimitedroleof Congressin this process. First,“the Presidentof the Senateshall receivecertifiedcopies of the electoral votes from each state” and “in the presenceof the SenateandHouseof Representatives,open allthe certificates.” The votes“shallthenbecounted.” Nothingin ArticleII,the 12thAmendmentor any other Constitutionaltext providesfor any debate,objectionor discretionaryjudgmentsby Congressin performingthe ministerialtask of countingthe votes. Nothingin the Constitutionremotelysays that Congressisthe courtof last resort,with the authorityto second-guessand invalidatestate and federal court judicialrulingsin electionchallenges. Indeed,the Constitutionaltext reads:“Thepersonhavingthe greatestNumberof [ElectoralCollege]votes for President,shallbethe President.” It doesnot say: “The personhavingthe greatestNumberof [ElectoralCollege]votesfor President,shall bethe President, unless Congressobjects or Congresswants to investigate.” TheConstitutionidentifiesspecificallythe only occasionswhen Congresscan takeany non-ministerialaction – when no Presidentialcandidatehas a majorityof the electoralvotes: “[I]f no personhave such majority[ofthe electoralvotes counted],then fromthe personshavingthe highestnumbersnot exceedingthreeonthelist of those voted for as President,the Houseof Representativesshallchooseimmediately,by ballot,the President…..” Thus,the Constitutionaltext tells us very clearly what Congress’roleis and isnot.

For most of our nation’shistory,the Framers’straight-forwardinstructionsregardingselectionof the Presidentprevailed. Inthe aftermathof our nation’sCivil War,officialsin certainReconstructionEra stategovernmentssubmittedcompetingslates of electors. In1887,Congresssoughtto resolvethose issuesby enactingthe ElectoralCount Act. A principalprovisionof that Act instructsthat a certificate identifyingthe ElectoralCollegeelectorsand their votes receivedfrom the Governorof a stateshall be regardedas “conclusive.”3.U.S.C.§ 5.6. Althoughthe Constitutionalityof that Act has beenthe subject of substantialdebate,herethere isno disputethat eachGovernorof the six statesat issuesubmittedan officialcertificationof the election,and those electors’ votes have been transmittedto this Congress. Thus,underthe ElectoralCount Act, thosecertificatesare conclusiveand must be counted. There is no discretionto do otherwiseunder that Act. Accordingly,boththe cleartextof the Constitutionand the ElectoralCount Act compelthe sameconclusion– there isno appropriatebasis to object to the electors fromany of the six statesat issue.

2 Section I below identifies the conclusions reached by the courts hearing the principal election challenges in the six states at issue. Section II provides more detailed descriptions of the cases, and further excerpts of the judges’ reasoning.

SECTIONI: ConclusionsReachedby StateandFederalJudgesin the SixStates:

ArizonaStateTrialCourt:

“There is no evidence that the manner in which signatures were reviewed was designed to benefit one candidate or another, or that there was any misconduct, impropriety,or violation of Arizona law with respect to the review of mail-in ballots.”

ArizonaSupremeCourt:

“[T]he challenge fails to present any evidence of “misconduct,” “illegal votes” or that the Biden Electors “did not in fact receive the highest number of votes for office,” let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results ….”

FederalCourtsinArizona:

“The allegations they put forth to support their claims of fraud fail in their particularity and plausibility. Plaintiffs append over three hundred pages of attachments, which are only impressive for their volume. The various affidavits and expert reports are largely based on anonymous witnesses, hearsay, and irrelevant analysis of unrelated elections.”

“The Complaint is equally void of plausible allegations that Dominion voting machines were actually hacked or compromised in Arizona during the 2020 General Election.…. Rather, what is present is a lengthy collection of phrases beginning with the words “could have, possibly, might,” and “may have.”

“Plaintiffs next argue that they have expert witnesses who can attest to widespread voter fraud in Arizona.… These innuendoesfail to meet Rule9(b) standards. But perhaps more concerningto the Court is that the ‘expert reports’ reach implausibleconclusions,often because they are derived from wholly unreliable sources.”

“Allegations that find favor in the public sphere of gossip and innuendo cannot be a substitute for earnest pleadings and procedure in federal court. They most certainly cannot be the basis for upending Arizona’s 2020 General Election. The Court is left with no alternative but to dismiss this matter in its entirety.”

StateCourtsinGeorgia:

“[T]heComplaint’sfactualallegationsdo not plausiblysupporthisclaims.The allegationsin the Complaint rest on speculationratherthanduly pledfacts.”

“[Georgia law] providesthat a petitionfor an electioncontest must set for the grounds for the election context. [Georgialaw] further providesthat it must set forth such facts as arenecessaryto ‘provide a full particularandexplicit statementof the causeof contest.’ Georgia’sSupremeCourt hasinterpretedthis to require a contestantto allegeand provea factualbasis showinggrounds for an electioncontestand to prohibit a contestantfrom basing a contest on a mere speculativebeliefthat an error hasoccurred. See Ellis v. Johnson,263 Ga.514 (1993). Plaintiffs’Complaintdoes not meet this requirementas it does not recite facts or evidencebut reliesonspeculationas to this belief that an error in the electionhas occurred. Therefore,hiscomplaint is dismissedfor failure to state a claim.”

3 FederalCourtsinGeorgia(Trump-appointedFederalJudgeGrimberg,affirmedbypanelincludingTrump- appointedFederalAppellateJudge Lagoa)

“EvenassumingWoodpossessedstanding,and assumingCountsI and IIare not barredby laches,the CourtnonethelessfindsWoodwouldnot be entitledto thereliefheseeks.”

“[Plaintiffs’] argument is that the proceduresin the SettlementAgreement regardinginformationand signature match so overwhelmed ballot clerks that the rate of rejection plummeted and, ergo,invalid ballots were passed over and counted.This argument is belied by the record; the percentage of absentee ballots rejected for missing or mismatchedinformationand signature is the exact same for the 2018 election and the General Election (.15%).”

ElectorsClause:“Woodargues Defendantsviolatedthe Electionsand ElectorsClauses becausethe ‘proceduresset forth in the [SettlementAgreement] for the handlingof defectiveabsenteeballotsisnot consistentwith the laws of the Stateof Georgia,and thus,Defendants’actions. . . exceedtheir authority.’ … Statelegislatures—suchas the Georgia GeneralAssembly—possessthe authorityto delegatetheir authorityover electionsto state officials in conformitywiththe Electionsand ElectorsClauses. Recognizingthat SecretaryRaffenspergeris “thestate’schief electionofficial,” the GeneralAssembly enactedlegislationpermittinghim (in his officialcapacity)to “formulate,adopt,and promulgatesuch rules and regulations,consistentwith law,as will be conduciveto the fair, legal,and orderlyconduct of primariesand elections.”O.C.G.A.§ 21-2-31(2).The SettlementAgreementis a manifestationof SecretaryRaffensperger’sstatutorilygrantedauthority.It does not overrideor rewritestate law.”

FederalCourtinMichigan:

RulinginCase Brought by Sidney Powell:“Withnothingbut speculationand conjecturethat votes for PresidentTrump were destroyed,discardedor switchedto votesfor VicePresidentBiden,Plaintiffs’equal protectionclaimfails.. . . [T]o beperfectlyclear, Plaintiffs’equalprotectionclaimis not supportedby any allegationthat Defendants’allegedschemescaused votes for PresidentTrump to be changedto votes for VicePresidentBiden. Forexample,the closest Plaintiffsget to allegingthat physicalballots were altered in such a way isthe followingstatementin an electionchallenger’sswornaffidavit:“I believesome of these workers were changingvotes that had been cast for DonaldTrump and other Republican candidates.”(ECF No.6 at Pg ID 902 ¶ 91(citingAff. Articia Bomer,ECF No.6-3 at PgID 1008-1010).) Butof course,“[a] belief is not evidence”and falls far short of what is requiredto obtain any relief,much lessthe extraordinaryreliefPlaintiffsrequest.”

State Courts inNevada(Extensive evidentiary analysis following a hearingand multiple depositions). The President’sspokesperson,Kayleigh McEnanystated on television (Hannity,Dec. 2,2020) that this was the “most importantcase” and would finally vet the Trump legalclaims. The Court did indeed vet all the legalclaims,including allegations regardingDominionvoting machines,and issued a detailed ruling that the evidencepresented did not support the President’sclaims.

“The Contestants failed to meet their burden to prove credible and relevant evidence to substantiateany of the grounds set forth in NRS 293.410 to contest the November 3,2020 General Election.” The Court assessed evidence submitted regarding the Dominion voting machine allegations specifically and concluded the evidence was not credible.

President Trump’s legal team appealed each of the issues up through the Nevada Supreme Court. That Court unanimously affirmed the rulingof the trial court judge, explaining: “Despite our earlier order asking appellants to identify specific findings with which they take issue,appellants have not pointed to any unsupported factual findings,and we have identified none.”

FederalCourtsinPennsylvania(includingdecisionwrittenbyTrump-AppointedFederalAppellateJudge):

4 “One mightexpect that when seeking such a startlingoutcome,a plaintiff would comeformidably armed with compelling legal arguments and factual proof of rampant corruption,such that this Courtwould have no option but to regrettably grant the proposedinjunctivereliefdespitethe impactit would haveon such a large group of citizens. That has not happened.Instead,this Court has been presentedwith strained legalargumentswithout merit and speculative accusations,unpled in the operative complaint and unsupportedby evidence.In the UnitedStatesof America,this cannotjustify the disenfranchisementof a single voter,let aloneall the voters of its sixthmostpopulatedstate.”

“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof.We have neither here. … ‘While legalconclusions can provide the framework of a complaint, they must be supported by factual allegations.’ Iqbal,556 U.S. at 679. Yet the Campaign offers no specific facts to back up these claims.”

“The Campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too.”

StateSupremeCourtin Pennsylvania:

“Petitioners’challengeviolatesthe doctrineof laches given their completefailure to act with due diligence in commencingtheir facial constitutionalchallenge,which was ascertainableupon Act 77’s enactment. It is well-establishedthat “[l]achesis an equitabledoctrinethat bars relief when a complainingpartyis guilty of wantof duediligencein failingto promptlyinstitutean action to the prejudiceof another.”Stilp v. Hafer,718 A.2d 290, 292 (Pa.1998).… The want of due diligencedemonstratedin this matter is unmistakable.Petitionersfiled this facialchallengeto the mail-invoting statutory provisionsmore than oneyear after the enactmentof Act 77. At the time this action was filed on November21,2020,millions of Pennsylvaniavotershad alreadyexpressedtheir willin both the June2020 PrimaryElectionand the November2020 GeneralElectionand the final ballotsin the 2020 GeneralElectionwerebeingtallied, with the resultsbecomingseeminglyapparent.. . . Thus, it isbeyondcavil that Petitionersfailed to act with due diligencein presentingthe instantclaim.”

FederalCourtsreviewingWisconsinelectionallegations(Decisionswrittenby two Trump-appointedFederal Judges):

“And, on the meritsof plaintiff’s claims, the Court now further concludes that plaintiff has not proved that defendants violated his rights under the Electors Clause.To the contrary,the record shows Wisconsin’s Presidential Electors are being determined in the very manner directed by the Legislature, as required by Article II,Section 1 of the Constitution.”

“In sum, far from defying the will of the Wisconsin Legislaturein issuingthe challenged guidance,the [Wisconsin Election Commission] was in fact acting pursuant to the legislature’s express directives.… Thus, the guidance that plaintiff claims constitutes an unconstitutionaldeviation from the Wisconsin Legislature’s direction,is, to the contrary, the direct consequence of legislature’s express command.”

“Inhis concurringopinion in Bushv. Gore,Chief Justice Rehnquist suggested that the proper inquiry under the Electors Clause is to ask whether a state conducted the election in a manner substantiallyconsistent with the “legislative scheme” for appointing electors.531U.S.98,113 (2000)(Rehnquist,C.J., concurring). . . . Whatever actions the Commission took here,it took under color of authority expressly grantedto it by the Legislature.”

StateSupremeCourtin Wisconsin

5 “We conclude the Campaign is not entitled to the relief it seeks. The challenge to the indefinitely confined voter ballots is meritless on its face, and the other three categories of ballots challenged fail under the doctrine of laches.”

SECTIONII: DescriptionandExcerptsof PrincipalCasesin allSix States

I. Arizona

A. Litigationin ArizonaStateCourt

Multiplechallengesto the Arizona Presidentialelectionwere filed,litigated and resolved with no change to the election outcome. In the principalcase (which ultimatelyreached the Arizona Supreme Court),the trial judge allowed the challengers to engage in inspection of mail-in and “duplicate”ballots, conduct multiple depositions,and present their evidenceat a hearing. In responseto allegationsabout allegedly forged signatureson mail-in ballots,the court found:

“There is no evidence that the manner in which signatures were reviewed was designed to benefit one candidate or another, or that there was any misconduct,impropriety, or violation of Arizona law with respect to the review of mail-in ballots.”

As the Court also explained, neither the plaintiffs nor the defense experts found evidence of “forgery or simulation” as to the examined mail-in ballots. Addressing the process for reviewing mail-in ballots under Arizona law, the trial court explained:

“UnderArizona law,voters who vote by mailsubmittheir ballot inside an envelope that is also an affidavit signed by the voter. Electionofficials reviewall mail-in envelope/affidavits to comparethe signatureon them withthe signature in voter registrationrecords.Ifthe official is “satisfiedthat the signaturescorrespond,”the unopenedenvelopeis held until the time for countingvotes.If not, officials attempt to contact the voter to validate the ballot. A.R.S. § 16-550(A). This legislatively-prescribedprocess is elaboratedon in the Secretaryof State’sElectionProceduresManual.. . . Maricopa County election officials followed this processfaithfullyin 2020.”

The Court also allowed inspection of a sample of “duplicate ballots.” Such duplicates must be made for overseas military voters and in cases when ballots cannot be properly read by a tabulation machine. As to that evidence, the Court found:

“The duplication process prescribedby the Legislaturenecessarily requires manual action and human judgment, which entail a risk of human error. Despitethat,the duplication processfor the presidentialelection was 99.45% accurate.And there is no evidence that the inaccuracieswere intentionalor part of a fraudulent scheme.They were mistakes.And given both the smallnumber of duplicateballots and the low error rate,the evidence does not show any impact on the outcome.”

The trial court concluded that “Plaintiff has not proven that the Biden/Harris ticket did not receive the highest number of votes.” The Arizona Supreme Court then unanimously affirmed that ruling, explaining as follows:

“The validity of an election is not voided by honest mistakes or omissions unless they affect the result, or at least render it uncertain.Findley v. Sorenson, 35Ariz. 265, 269 (1929). Where an election is contested on the ground of illegalvoting, the contestant has the burden of showing that sufficient illegalvotes were cast to change the result,Morgan v.Board of Sup’rs, 67 Ariz. 133 (1948).The legislature has expressly delegated to the

6 Secretarythe authority to promulgaterules and instructionsfor early voting. A.R.S. § 16- 452(A).After consultingwith county boardsand election officials,the Secretaryis directed to compile the rules “in an officialinstructionsand proceduresmanual.” The Election ProceduresManualor “EPM,”has the force of law.The Court recentlyconsidered a challenge to an election processand granted reliefwhere the county recorderadopted a practice contraryto the EPM…. Here, however,there are no allegations of any violation of the EPMor any Arizona law.”

“Because the challenge fails to present any evidenceof “misconduct,”“illegal votes” or that the Biden Electors “didnot in fact receivethe highest number of votes for office,” let alone establishany degree of fraud or a sufficient error ratethat would underminethe certainty of the election results,the Court need not decideif the challenge was in fact authorized underA.R.S.§ 16-672or if the federal“safe harbor” deadlineapplies to this contest. IT IS ORDERED affirming the trialcourt decision and confirmingthe election of the Biden Electorsunder A.R.S.§ 16-676(B).”

B. Litigationin FederalCourtin Arizona

Tyler Bowyer,et al., v. DougDucey,et al.,FederalDistrictCourt,Arizona,CV-20- 02321-PHX- DJH,12/09/20.Judge DianaHumetewa.

In additionto litigatinginthe Arizona state judicialsystem,plaintiffssupportingPresidentTrump also attemptedto bring multiple claimsin FederalDistrict Courtfor the Districtof Arizona, with factual allegations addressing“destructionof absentee ballots,” Dominionvotingmachines,voting fraud and manipulation,problems with the election observerprocess,and alleged “dilutionof lawful votes.” The Court explainedwhy severalof the allegations were insufficientto state a federalConstitutionalclaim, includingbecause the plaintiffslacked standing under ArticleIIIof the Constitution. The Court also addressedplaintiffs’ allegations of fraud specifically. Belowis a selection of excerpts from the Judge’s opinion on those issues:

“The allegations they put forth to support their claims of fraud fail in their particularity and plausibility.Plaintiffs append over three hundred pages of attachments, which are only impressive for their volume. The various affidavits and expert reportsare largely based on anonymous witnesses, hearsay,and irrelevant analysis of unrelated elections.”

“The Complaintis equally void of plausibleallegationsthat Dominionvotingmachineswere actuallyhackedor compromisedin Arizona duringthe 2020 GeneralElection.Plaintiffsare clearly concernedabout the vulnerabilitiesof votingmachinesused in somecounties across Arizona and in other states.They cite sources that attest to knowledgeof ‘well- known’vulnerabilities,have includedlettersfrom concernedcitizens,Arizona elected officials,and UnitedStates senators.Plaintiffseven attach an affidavitof an anonymous witness with connectionsto the late VenezuelandictatorHugoChavez claimingto be privy as to howofficialsin Venezuelariggedtheir electionswith the help of a votingsystems companywhose software“DNA” isnowused invoting machinesin the UnitedStates. (Doc.1-1,Ex.1).These concernsand stated vulnerabilities,however,do not sufficiently allegethat any voting machineused in Arizona was in fact hackedor compromisedin the 2020 GeneralElection. Rather,what ispresent is a lengthycollectionof phrasesbeginning with the words “couldhave,possibly,might,” and “mayhave.”

“Plaintiffs next argue that they have expert witnesses who can attest to widespread voter fraud in Arizona. As an initial matter, none of Plaintiffs’ witnesses identify Defendants as committing the alleged fraud, or state what their participation in the alleged fraudulent scheme was. Instead,they allege that, absentee ballots “could have been filled out by

7 anyone and then submitted in the nameof another voter,” “could be filled in by third parties to shift the election to Joe Biden,” or that ballots were destroyed or replaced “with blank ballots filled out by election workers, Dominionor other third parties.” (Doc.1 ¶¶54–58)(emphasis added).These innuendoes fail to meetRule 9(b) standards.But perhaps more concerning to the Court is that the ‘expert reports’ reach implausible conclusions,often because they are derived from wholly unreliablesources.”

“Not only havePlaintiffsfailed to providethe Court with factualsupport for their extraordinaryclaims,but they have wholly failed to establish that they havestandingfor the Court to consider them. Allegations that find favor in the public sphere of gossip and innuendocannot be a substitutefor earnest pleadings and procedureinfederalcourt.They most certainly cannot be the basis for upendingArizona’s2020 GeneralElection.The Court is left with no alternative but to dismiss this matter in its entirety.”

II.Georgia

A. CaseslitigatedinGeorgiaStateCourt

Multipleplaintiffsfiled cases challengedthe Georgia election in Georgia State Courts. The Georgia legislaturehas enacted a detailed seriesof lawsgoverningelections.Those lawsprovide specific remediesto addresselection relatedconcerns(includingpost-electionaudits). The Georgia code also specifically providesfor election challengesto befiled before Georgia state courts. In certain of the cases filed, the litigantssupportingPresidentTrump made fundamentalerrors by,for example,failingto sue the appropriateGeorgia officialsas requiredby Georgia law,failing to serve the defendants in the case with process,and other routine filingerrorsdelayingthe cases. A summaryof the issuesappearsin a brief filed in the U.S. SupremeCourt by the AttorneyGeneralof the State of Georgia (a Republicanappointee).1

“Since the Novemberelection,there have been at least six Georgia casesallegingthat state electionofficials violatedthe lawby actingin accordancewith the State’ssettlement agreementor by adoptingState Rule183-1-14-0.9-.15.See, e.g., Woodv. Raffensperger, No.1:20-cv-04651-SDG(N.D.Ga.); Pearsonet al.v. Kempet al., No.1:20-cv-04809-TCB (N.D.Ga.); Woodv. Raffenspergeret al., No.2020-CV-342959(FultonCnty.Sup.Ct.); Bolandv. Raffensperger,No.2020-CV-343018(FultonCnty.Sup.Ct.); DellaPollav. Raffensperger,No.20-1-7490(Cobb Cnty.Sup.Ct); Trump et al. v. Raffenspergeret al.,No. 2020-CV-343255(FultonCnty.Sup.Ct.). And none of that litigationhas gone anywhere. The EleventhCircuit,the NorthernDistrictof Georgia,and the Superior Courtsof Fulton County and Cobb County,Georgia haverejectedallthe claims except for in onecase, which was filed just this week and is thus stillwindingthroughGeorgia’scourts just as the Georgia Legislatureenvisioned.”

The Georgia Attorney General also described how Georgia’s legislature enacted measures for election recounts (and state court election challenges) in accordance with Article II of our Constitution, and how those measures were implemented in 2020.

“Georgia’s legislature enacted laws governing elections and election disputes, and the State and its officers have implemented and followed those laws. To ensure the accuracy of the results of that process,it has completed three total counts of the vote for its presidentialelectors,including a historic 100 percent manual recount—allin accordance with state law. It has, consistent with its authority under 3 U.S.C. § 5 [the ElectoralCount

1 Amongtheattorneysjoiningthe AttorneyGeneralon that briefwas Jody Hunt,PresidentTrump’s former appointeeas AssistantAttorneyGeneralfor theU.S.Departmentof Justice’sCivilDivision.

8 Act], authorizeditscourtsto resolveelectiondisputes.…The Legislaturehasgiven the ElectionBoardexpress authorityto “promulgaterules and regulations”to ensure “uniformity”amongelectionofficialsand a “fair,legal,and orderly” election.O.C.G.A.§ 21- 2-31.…First,in accordancewith O.C.G.A.§ 21-2-498,Georgia completeda risk-limiting audit….The audit resultedin a manualcount of nearly5 millionballots cast—a processthat lastedthe better part of a week and requiredthe Stateto deploy immensehumanand financialresources.Ultimately,the audit confirmedthe initialelectionresults,and SecretaryRaffenspergercertifiedthe resultson November20,2020. That was not all. Respondingto the Trump Campaign’srequest,Georgia undertooka machinetabulation recountof the nearly 5 millionballots. Again,the recountconfirmedtheinitialelection results.”

Georgia state courts have specifically addressed allegations of election irregularities. In Boland v. Raffensperger,for example, a Georgia State Court evaluated a range of allegations about misconduct by election officials and related matters. The Court described the plaintiffs’ case as follows:

“Evenif credited,theComplaint’sfactualallegationsdo not plausiblysupporthis claims. The allegationsintheComplaintrest on speculationratherthan dulypledfacts.They cannot,as a matterof law,sustainthis contest.Count I,which allegesthat 20,312people mayhavevoted illegallyin Georgia,reliesupon a YouTubevideo which purportedlyis baseduponUnitedStatesPostalServicemailforwardinginformation.Pet.¶ 1.CountII allegesthatthe signature-matchingprocessresultingfrom a SettlementAgreement enteredinto by the State nine monthsago is inconsistentwith Georgia’selectioncode,and allegedlyviolatesthefederalConstitution.3Pet.¶ 17.TheCourt findsthat Plaintiff’s allegations,as pled,do not supportan allegationof improprietyor a conclusionthat sufficientillegalvotes were cast to changeor place in doubt theresultof the election. Theseargumentshave beenofferedand rejectedin other courts.See Wood,2020 WL 6817513,at *10.Furthermore,the statutorychangesput inplaceby the GeneralAssembly permittingvoters to cure signatureissueson their ballot as a resultof 2019 legislation,as well as regulatorychangesadoptedby the StateElectionBoardcontemporaneouswith executionof theSettlementAgreement,wouldbeexpectedto result in fewer signature rejections.This would not bebecauseillegalvotes are somehowevadingreview,but becausesubjectingsignaturesto morethoroughverificationand permittingvoters to cure suspectederrors shouldreducethenumberof lawfulballotsthatareimproperlythrown out.”

Likewise,in the DellaPollacase,a GeorgiaStateCourtJudgeconcludedas follows:

“[Georgia law] providesthat a petitionfor an electioncontest must set forth the grounds for the electioncontext. [Georgialaw]further providesthat it must set forth such facts as are necessaryto ‘providea fullparticularand explicit statementof the causeof contest.’ Georgia’sSupremeCourthas interpretedthis to require a contestantto allege and provea factualbasis showinggrounds for an electioncontest and to prohibita contestantfrom basinga conteston a merespeculativebelief that an error has occurred. See Ellis v. Johnson,263 Ga.514 (1993). Plaintiffs’ Complaintdoes not meetthis requirementas it doesnotrecite facts or evidencebut relieson speculationas to this beliefthat an error in the electionhas occurred. Therefore,his complaint is dismissedfor failure to state a claim.”

Inoneremainingstate court case,Trumpet al.v. Raffenspergeret al., No.2020-CV-343255, counselfor PresidentTrump initiallysoughtan emergencyhearingto addresshis claimsof fraud and

9 illegality,butthen withdrewthatemergencymotionon December8,2020,cancelingthe imminent hearingand delayingthecase. This has slowedthe ultimateresolutionof that action.

B. PrincipalCaseslitigatedin FederalCourtin Georgia

LinWoodv. Raffensperger,FederalDistrictCourtfor theNorthernDistrictof Georgia,AtlantaDivision,Judge StephenGrimburg(appointedby PresidentTrump.)

The plaintiff in this FederalDistrict Court case arguedthat Georgia officials took unauthorized actions and treated absentee ballots in a manner that favored candidate Biden. Plaintiff also asked the Court to order a “second recount” of Georgia ballots. The absenteeballotallegations related in part to a settlement in March 2020 by Georgia of a prior lawsuit. Plaintiffalso argued that designated Republican monitorsdid not have proper access to an audit conducted by Georgia state officialsin the days after the election.

Judge Grimberg,a Trump appointee,conducteda hearingwith live witnesstestimonybefore issuinghisruling. Hisopinion beginsby describingthe foundationalConstitutionalproblemswith PlaintiffWood’s federalsuit,includingthat Wood lackedstandingand notingthat Wood was relyingupon a 199311th Circuit precedentthat is “no longer good law.” JudgeGrimbergalso explainedwhy courts requirethe type of challengePlaintiffbrought to bemade pre-election,beforemillionsof voters cast their ballots.2 After addressingthose issues,the Court turned to the substanceof Wood’s legal and factual arguments,explainingas follows:

“EvenassumingWoodpossessedstanding,and assumingCountsI and IIare not barredby laches,theCourtnonethelessfindsWoodwouldnot be entitledto thereliefheseeks.”

Allegations about Absentee Ballots:“Wood’sargumentisthat the proceduresin the SettlementAgreementregardinginformationand signaturematchso overwhelmedballot clerksthat the rateof rejectionplummetedand,ergo,invalidballots were passedover and counted.This argumentis beliedby the record;the percentageof absenteeballots rejected for missingor mismatchedinformationand signatureisthe exact same for the 2018 electionand the GeneralElection(.15%).This is despite a substantialincreasein the total number of absenteeballots submittedby votersduring the GeneralElectionas compared to the 2018 election.”

Electionsand ElectorsClauses:“In relevantpart,the Constitutionstates:‘The Times,Places and Mannerof holdingElectionsfor Senatorsand Representatives,shallbeprescribedin each State by the Legislaturethereof.” U.S.Const.art.I,§ 4,cl.1.This provision— colloquiallyknownas the ElectionsClause—vestsauthorityin the states to regulatethe mechanicsof federalelections.Fosterv. Love,522 U.S.67, 69 (1997).The ‘ElectorsClause’ of the Constitutionsimilarlystates that “[e]achState shallappoint,in such Manner as the Legislaturethereofmaydirect, a Numberof [Presidential]Electors.”U.S.Const.art. II,§ 1, cl. 2. Wood argues Defendantsviolatedthe Electionsand ElectorsClauses becausethe ‘proceduresset forth in the [SettlementAgreement] for the handlingof defectiveabsentee ballots isnotconsistentwith the laws of the Stateof Georgia,and thus,Defendants’ actions . . . exceedtheir authority.’ Put another way,Wood argues Defendantsusurped

2 Judge Grimberg cited Justice Kavanaugh’s concurrencein a recent election suit filed by the Democratic NationalCommittee. See Democratic Nat’l Comm.v. Wisc. State Legislature,No.20A66,2020 WL 6275871, at *4 (U.S. Oct.26,2020)(Kavanaugh,J., concurring indenialof application to vacate stay) (“The principle [of judicial restraint] also discourageslast-minute litigation and instead encourageslitigants to bring any substantialchallengesto election rules ahead of time,in the ordinary litigationprocess.”)

10 the roleof theGeorgiaGeneralAssembly—andtherebyviolatedthe UnitedStates Constitution—byenactingadditionalsafeguardsregardingabsenteeballotsnot foundin the GeorgiaElectionCode…. State legislatures—suchas theGeorgiaGeneralAssembly— possesstheauthorityto delegatetheir authorityover electionsto state officialsin conformitywith the Electionsand ElectorsClauses. [CitingU.S.SupremeCourt precedent.]Ariz.State Legislature,576 U.S.at 816 (“TheElectionsClause [ ] is not reasonablyreadto disarmStatesfrom adoptingmodesof legislationthat placethe lead reinin the people’shands. . . it is characteristicof ourfederalsystemthat Statesretain autonomyto establishtheir own governmentalprocesses.”).See also Cormanv. Torres,287 F.Supp.3d 558,573 (M.D.Pa.2018)(“TheElectionsClause,therefore,affirmativelygrants rightsto statelegislatures,and under SupremeCourtprecedent,to other entitiesto which a statemay,consistentwith theConstitution,delegatelawmakingauthority.”)… Recognizingthat SecretaryRaffenspergeris “thestate’schief electionofficial,”the General Assemblyenactedlegislationpermittinghim(in his officialcapacity)to “formulate,adopt, and promulgatesuch rulesand regulations,consistentwith law,as will beconduciveto the fair, legal,and orderlyconductof primariesand elections.”O.C.G.A.§ 21-2-31(2).The SettlementAgreementis a manifestationof SecretaryRaffensperger’sstatutorilygranted authority.It does notoverrideor rewritestate law. Itsimplyaddsan additionalsafeguardto ensureelectionsecurityby havingmorethan one individualreviewan absenteeballot’s informationand signaturefor accuracybeforetheballotisrejected.Wooddoes not articulatehowthe SettlementAgreementis not “consistentwith law” other than it not beinga verbatimrecitationof the statutorycode.TakingWood’sargumentat face value rendersO.C.G.A.§ 21-2-31(2)superfluous.A stateofficial—suchas Secretary Raffensperger—couldnever wieldhis or her authorityto makerulesfor conducting electionsthat had nototherwisealreadybeenadoptedbythe GeorgiaGeneralAssembly. The recordin this case demonstratesthat,if anything,Defendants’actionsin enteringinto the SettlementAgreementsoughtto achieveconsistencyamongthecountyelection officialsin Georgia,whichfurthersWood’sstatedgoals of conducting“[f]ree,fair,and transparentpublicelections.”

Judge Grimberg’s Conclusion:“Grantinginjunctive relief here would breed confusion, underminethe public’s trust in the election,and potentially disenfranchise over one million Georgia voters. Viewed in comparison to the lack of any demonstrable harm to Wood, this Court finds no basis in fact or in law to grant him the relief he seeks.”

On appeal, a three judge panel of the Federal Circuit Court of Appeals for the 11th Circuit affirmed Judge Grimberg’s ruling unanimously. The panel included Judge Lagoa (a Trump appointee who was considered by the President for the recent Supreme Court vacancy, and Judge William Pryor, a Bush appointee.)

Finally, in the Pearson litigation filed by Sidney Powell in Federal District Court in Atlanta, Judge Batten (a Bush appointee) reviewed all the pleadings and held an argument on a motion for an injunction. Judge Batten concluded as follows:

“Finally,in their complaint,the Plaintiffs essentially ask the Court for perhaps the most extraordinary relief ever sought in any FederalCourt in connection with an election.They want this Court to substitute its judgment for that of two-and-a-half million Georgia voters who voted for Joe Biden, and this I am unwilling to do.”

III. Michigan

11 A number of cases were launched in Federal and State Courtsin Michiganchallenging different elementsof the Michiganelection. Certain of the cases were summarilydismissed by the courtsfor a rangeof pleading or proceduralerrors – includingsuing the wrong state official. Certain other cases were voluntarily dismissed by those litigants who brought them after the election was certified under Michigan law. The evidence supportingvarious arguments was assessed in certain of the cases. For example, Judge Stephensof the Court of Claims for Michigandescribed one set of evidentiaryissuesthis way:

“This‘supplementalevidence’ is inadmissibleas hearsay.Theassertionthat Connarnwas informedby an unknownindividualwhat “other hiredpollworkers at her table” had been told isinadmissiblehearsaywithin hearsay,and plaintiffshaveprovidedno hearsay exceptionfor either levelof hearsaythat would warrantconsiderationof the evidence.See MRE801(c).The note—whichis vague and equivocal—islikewisehearsay. And again, plaintiffshavenotpresentedan argumentas to why the Court could considerthe same, given the generalprohibitionsagainst hearsayevidence.See Ykimoffv FooteMemHosp, 285 MichApp 80,105;776 NW2d114(2009). Moreover,even overlookingthe evidentiaryissues,the Court notesthat therearestill no allegationsimplicatingthe Secretaryof State’sgeneralsupervisorycontrolover the conductof elections.. . . Not only can the reliefrequestednot issue against the Secretaryof State,who istheonly named defendantin this action,but the factualrecorddoes not supportthe reliefrequested.”

Another Federal District Court case brought by attorney Sidney Powellin the Eastern Districtof Michigan alleged many of the same irregularities publicized in the press, such as voting machines allegedly corrupted or hijacked in the same manner used in Venezuela by former PresidentHugo Chavez. Federal District Court Judge Parker systematicallyreviewed the evidencePowell submitted explained why the relief sought by Powell could not be granted. For example,Judge Parker wrote:

“With nothing but speculation and conjecture that votes for President Trump were destroyed, discarded or switched to votes for Vice President Biden, Plaintiffs’equal protection claim fails.”

“[T]o be perfectlyclear,Plaintiffs’ equal protectionclaim is not supportedby any allegation that Defendants’allegedschemes caused votesfor PresidentTrump to bechangedto votes for Vice PresidentBiden.For example,the closestPlaintiffsget to allegingthat physicalballots were alteredin such a way is the followingstatementin an election challenger’ssworn affidavit:“I believesome of these workers were changingvotes that had been cast for DonaldTrump and other Republicancandidates.”(ECF No. 6 at PgID 902 ¶ 91(citingAff.Articia Bomer,ECF No.6-3 at Pg ID 1008-1010).)But of course,“[a] belief isnotevidence”and falls far short of what isrequiredto obtain any relief,muchless the extraordinaryrelief Plaintiffsrequest.”

“The closest Plaintiffs get to alleging that election machines and software changed votes for President Trump to Vice President Biden in Wayne County is an amalgamation of theories, conjecture, and speculation that such alterations were possible.”

“As Defendantsaptly describe,Plaintiffs’ requestedinjunctionwould “upend the statutory processfor election certificationand the selection of PresidentialElectors. Moreover,it w[ould] disenfranchise millions of Michiganvoters in favor [of] the preferencesof a handful of peoplewho [are] disappointedwith the officialresults.” (ECF No.31at PgID 2227.) In short, none of the remainingfactors weigh in favor of granting Plaintiffs’ request for an injunction.”

12 In the wake of Judge Parker’s ruling, defense counsel has filed a motion seeking sanctions against Powell and others on her legal team: “Plaintiffs’ egregious conduct and frivolous and fraudulent filings clearly warrant sanctions under 28 U.S.C. §1927.”

IV. Nevada

In Nevada,as in other states,severalelection challenges were filed pursuant to state law. The principalcase was filed before …. The Court allowed multiple depositionsto be taken,consideredall the affidavits presented,and issued a lengthyevidentiaryrulingfollowing a hearing. This is the case that President Trump’s legal team called,“the most important case” [KayleighMcEnany Dec 2 Hannity]that would finally fully vet the factualbasis for their election fraud claims. The Court did indeed conduct a full hearingvetting the factualbasis for each legalclaim. Heruled against the plaintiffs,and was affirmed unanimouslyby the Nevada SupremeCourt.

Nevada District Judge Russell allowed each party to conduct 15 depositions, considered all the evidence from those depositions and all submitted affidavits in detail. His 34 page opinion is highly detailed and addresses all the principal allegations. He explained as follows:

DominionVoting Machines:“ClarkCounty,along with 15 othercountiesin Nevada uses DominionVotingSystemsto conductin personvoting…. These voting systemsaresubject to extensivetestingand certificationbeforeeach electionand areauditedaftereach election. For example,the electronicvotingsystemsused byClarkCountywerecertified bythe federalgovernmentwhen they were first broughton the market,as wellas any time a hardwareor softwarecomponentis upgraded. This certificationisdoneby a voting systemtest laboratory. The electronicvotingmachinesare also tested and certifiedby the Secretary.… These voting machinesare also auditedagainst a paper trailthat is generated … when votersmake their selections. A ClarkCountyvoting machinewill not operate unlessit isconnectedto a printer… which createsa paper recordthat voterscan review.… After each election,ClarkCounty,like Nevada’sother counties,conductsa randomaudit of itsvoting machines. Specifically,it comparesthe paper trail createdby the printer againstthe resultsrecordedby the voting machineto ensurethey match.… Clark County conductedthis audit followingthe Novemberelectionand there wereno discrepancies betweenthe paper audit trailcreatedby the printerand the data fromthevotingmachine.”

“Contestants’ evidence does not establish by clear and convincing proof,or under any standard of evidence,that ‘there was a malfunction of any voting device or electronic tabulator, counting device or computer in a manner sufficient to raise reasonabledoubt as to the outcome of the election.”

Affidavits/Declarationsfrom Non-TestifyingWitnesses:“Muchof Contestants’evidence consists of non-depositionevidenceinthe form of witness declarations. These declarationsfalloutside the scopeof the contest statute,which providesthat election contests ‘shall be tried andsubmittedso far as may be possibleupon depositionsand writtenor oral argument as the court may order.… The reasonfor this is to allow for the cross-examinationof the deponentunder oath.… Thesedeclarationsalso constitute hearsay,as they are out-of-courtstatementsofferedin evidenceto prove the truthof the mattersasserted. Most of thesedeclarationswere self servingstatementsof little or no evidentiaryvalue. The Court nonethelessconsidersthe totalityof evidenceprovidedby Contestantsin reachingand rulinguponthe meritsof their claims.”

Plaintiffs’ Expert Evidence: The Court heard expert testimony from three individuals who sought to use telephone surveys and statistical information to infer that the vote tallies must be incorrect, and to opine upon the administration of mail in voting. He found each proffered expert unreliable.

13 “The Court questionsMr.Baselice’smethodologybecausehe was unableto identifythe sourceof the data for hissurveyand conductedno qualitycontrolof the data he received.”

“The Court questions Mr.Kamzol’s methodology because he had little to no information about or supervision over the origins of his data, the manner in which it had been matched and what the rate of false positives would be. Additionally, there was little to no verification of his numbers.”

“Mr.Gessler’s report lacked citationsto facts and evidencethat he used to come to his conclusionsand did not include a single exhibit to support any of his conclusions. The Court finds that Mr.Gessler’s methodology is unsound because he based nearly all of his opinionson a handfulof affidavitsthat hetook no steps to corroborate through independent investigation.”

“As reflected herein,the Court finds that the expert testimony provided by Contestants was of little or no value. The Court did not exclude consideration of this evidence, which it could have,but gave it very little weight.”

Illegal or ImproperVotes: “Contestants allege that fraud occurred at multiple points in the voting processin Nevada that exceed the margin of victory in the presidentialrace. … The Court finds there is no evidencethat voter fraud ratesassociated with mail in voting are systematically higher than voter fraud ratesassociated with other forms of voting.….[T]he illegal vote ratetotaled at most only 0.00054 percent.”

Provisional Ballots, MismatchedSignatures, Illegal Votes from In-Person Voting Technology, IneligibleVoters and Double Voting, Deceased Voters, Voter Impersonation,Untimely Ballots: The court made detailed findings rebutting each of plaintiffs’ claims about illegality on each of these topics.

Judge Russell concluded: “The Contestants failed to meet their burden to prove credible and relevant evidence to substantiate any of the grounds set forth in NRS 293.410 to contest the November 3, 2020 General Election.” President Trump’s legal team appealed each of the issues up through the Nevada Supreme Court. That Court unanimously affirmed the ruling of the trial court judge, explaining:

“Despite our earlier order asking appellants to identify specific findings with which they take issue, appellants have not pointed to any unsupported factual findings, and we have identified none.”

V. Pennsylvania

A. CasesFiledin StateCourt

In Kelly et al. v. Commonwealth of Pennsylvania et al., a group of plaintiffs challenged the mail-in ballot measures enacted by the Pennsylvania legislature in Act 77 (Act of October 31, 2019, P.L.552, No. 77; see also 25 Pa.Stat.xx 3146.6(c)). The case began in Pennsylvania state court, reached the Pennsylvania Supreme Court,and then was the subject of a petition for emergency injunctive relief to the U.S.Supreme Court.

The principalallegation in the case was that Pennsylvania’s “mail-in ballot” law violated the Pennsylvania state Constitution’s provisionon absentee voting. The plaintiffs claimed that the state constitution’s provision is a restriction on all forms of remote voting, i.e. other than in-person voting. But Pennsylvania does not interpret its own Constitution that way. Instead,the Pennsylvania legislature understood the absentee voting provision to require that the Legislature provide an avenue for absentee

14 voting for anyone who will not vote in person becausethey will be out of town on business,are prevented from voting in person by illness,are physicallydisabled,are observinga religious holiday or are serving as poll workers that day. As Pennsylvania explainsin its brief to the U.S.Supreme Court,the absentee voting provision ensures that people in those categories will be able to vote absentee,but does not prevent the legislature from goingfurther and providing a broader provision for mail-in ballots:

“Petitionerscontendthat by requiringthe GeneralAssemblyto allowcertainvotersto cast absenteeballots,Article VII, § 14 somehowforbids the GeneralAssemblyfrom allowing othersto vote by mail.Butthe inclusionof a particularlegislativedutyin the Pennsylvania Constitutiondoesnotpreventthe GeneralAssemblyfrom craftingother legislationon that topic.Infact,the PennsylvaniaConstitutionoriginallysaid “may” and nowsays “shall” in Article VII,§ 14—achangemeantto further clarifythat this provisionprovidesa floor,not a ceiling,for absenteevoting in Pennsylvania.See, e.g., Mathewsv. Paynter,752 F. App’x 740,744 (11thCir. 2018)(distinguishing“shall”from “may”and notingthat former term doesnotimpliedlylimit governmentauthority).Thus, the PennsylvaniaConstitution providesthat the GeneralAssemblymust allowvoters in the enumeratedfour categories to cast absenteeballots,but may also go further—byexercisingits broadpower to “prescribe[]”the permissible“method[s]”of voting,PA.CONST.art. VII,§ 4—and allow othercategoriesof voters to votebymail,includingbyallowingany voterto opt to cast a mail-inballot.”

When this issue reached the Pennsylvania Supreme Court, the court ruled against plaintiffsbased on the state law doctrine of “laches” – explainingthat the plaintiffs waited too longto bring their claims, and could have broughttheir claims before the November election. Pennsylvania also explained that multiplestate elections have already been conducted under the “mail-in” ballot law. Pennsylvania’sbrief in the U.S. Supreme Court and characterized the argument this way:

“Petitionersmaintainthat the doctrineof laches must yield becausethey “are not lawyers,” and could nothave“been reasonablyexpectedto know[] that they had viable legalclaims well-beforethe electionoccurred.”App.at 37. This assertionof ignoranceis implausible, given that severalPetitionersare current legislatorsor candidatesfor legislativeoffice.See Compl.¶¶ 3-4. In any event,‘[l]achesis not excusedby simplysaying,‘I did not know.’ If by diligence a fact can be ascertained,the want of knowledgeso caused is no excusefor a stale claim.The test is not what the plaintiff knows,‘but what he might haveknownby the use of the means of informationwithin his reachwith the vigilance the lawrequiresof him.’”

As noted, after the Pennsylvania Supreme Court ruled, the plaintiffs in the case filed a request with the U.S. Supreme Court for an emergency injunction. The Supreme Court denied that request on December 8, 2020. No U.S. Supreme Court Justice dissented from that denial.

In addition to the Kelly case,severalother state court cases have beenunsuccessfullypursued. One such case, Metcalf,was brought 11days after the state law deadline, and was dismissed on that basis. In another matter, INRE:CANVASSOF ABSENTEEAND MAIL-INBALLOTS OF NOVEMBER 3, 2020 GENERAL ELECTION,8,329 votes were challenged because the voters failed to properly print their names, addresses and the date in full on the ballot envelope. The PennsylvaniaSupremeCourt applied statelaw and ruled as follows:

“Here we conclude that while failures to include a handwritten name, address or date in the voter declaration on the back of the outer envelope, while constituting technical violations of the Election Code, do not warrant the wholesale disenfranchisement of thousands of Pennsylvania voters.”

15 B. CasesFiledin FederalCourt

In DonaldJ. Trumpfor President,Inc.,et al v. Boockvar,the FederalDistrictCourt for the Middle Districtof Pennsylvaniaaddressedplaintiffs’ concerns with what is knownas a “notice and cure” policy. Underthat policyPennsylvaniaState electionofficialsallowedPennsylvaniacounty officials to provide noticeto voterswho had not properlyfilled out mail in or absenteeballots,so that the voterscould correct them. Some of the counties in the state exercisedthis authority and othersdid not. Plaintiffs arguedthat the unequalapplicationof this policy acrossthe state requiredthe Courtto throwout the electionresult state-wide. The Court respondedas follows:

“One mightexpect that when seeking such a startlingoutcome,a plaintiff would come formidablyarmed with compellinglegal argumentsand factual proof of rampant corruption,such that this Court would have no option butto regrettablygrant the proposedinjunctiverelief despitethe impact it would have on such a large group of citizens.That has not happened.Instead,this Court has been presentedwith strained legal argumentswithout merit and speculativeaccusations,unpledinthe operative complaint and unsupportedby evidence.In the UnitedStates of America, this cannot justify the disenfranchisementof a singlevoter,let alone allthe voters of its sixth most populated state.”

“Plaintiffs’ claims fail becauseit is perfectly rationalfor a state to provide counties discretionto notifyvotersthat they may cure procedurallydefective mail-inballots. Though states may not discriminatorilysanction proceduresthat are likelyto burden some persons’ right to vote morethan others,they need not expand the right to vote in perfect uniformity.All Plaintiffshave alleged is that SecretaryBoockvar allowed counties to choose whether or not they wished to use the notice-and-cureprocedure.No countywas forced to adoptnotice-and-cure;each county made a choice to do so,or not. Because itis not irrationalor arbitrary for a state to allowcounties to expand the right to vote if they so choose,IndividualPlaintiffsfailto state an equal-protectionclaim.”

“Crucially,Plaintiffsfailto understandthe relationshipbetweenright and remedy.Though everyinjurymust have its proper redress,a courtmaynot prescribea remedy unhinged fromthe underlyingright beingasserted.By seekinginjunctiverelief preventingcertification of the Pennsylvaniaelectionresults,Plaintiffsask this Court to do exactlythat.Even assumingthat they can establishthat their rightto vote has been denied,which they cannot, Plaintiffsseek to remedy the denialof their votes by invalidatingthe votesof millionsof others.Rather than requestingthat their votesbe counted,they seek to discreditscores of othervotes,but only for onerace.This is simplynothowthe Constitutionworks.”

The FederalCourt of Appealsfor the ThirdCircuitaffirmedtheDistrictCourt ruling. Judge Bibas, anothernomineeof PresidentTrump,wrote theextensiveopinion:

“Free,fair electionsarethe lifebloodof our democracy.Charges of unfairnessareserious. Butcalling an electionunfairdoesnotmake itso. Charges requirespecific allegationsand then proof.We have neitherhere. The Trump PresidentialCampaignasserts that Pennsylvania’s2020 electionwas unfair.Butas lawyerRudolphGiulianistressed,the Campaign“doesn’tpleadfraud. . . . [T]hisis not a fraud case.” Mot.to DismissHr’g Tr. 118:19–20,137:18.Instead,it objectsthat Pennsylvania’sSecretaryof Stateand some countiesrestrictedpoll watchersand let votersfix technicaldefects in their mail-inballots. It offers nothingmore.”

“So is theclaimthat,“[u]poninformationand belief,a substantialportionof the approximately1.5millionabsenteeand mailvotes in DefendantCountiesshouldnot have

16 been counted.” Id.¶¶ 168,194,223,253.‘Upon informationand belief’ is a lawyerlyway of saying that the Campaign does not know that somethingis a fact but just suspects it or has heard it.‘While legal conclusions can provide the framework of a complaint,they must be supported by factual allegations.’ Iqbal,556 U.S. at 679. Yet the Campaign offers no specific facts to back up these claims.”

“The Campaign’s claims have no merit.The number of ballots it specifically challenges is far smaller than the roughly81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegalvoters. Plus,tossingout millions of mail-in ballots would be drastic and unprecedented,disenfranchising a huge swath of the electorate and upsetting all down-ballot races too.”

Another case filed in FederalDistrict Court addressed the State law deadlinefor receipt of mailed ballots. This case has nowbeen the subject of multiple filings at the U.S. Supreme Court but addresses only a relativelysmallnumber of ballots – approximately9400 votes,far short of the Biden margin of victory in Pennsylvania. The matter relates to a PennsylvaniaState Courtruling extendingthe Pennsylvaniastatue’sdeadline for receiptof mailed ballotsby a numberof days becauseCOVID-19 apparently threatened delays in maildelivery. On November 6,2020, Justice Alito entered a brieforder, requiringthat:

“All [Pennsylvania]county boardsof election are hereby ordered,pendingfurtherorder of the Court,to comply with the followingguidanceprovidedby the Secretaryof the Commonwealthon October 28 and November1,namely,(1) that all ballotsreceivedby mail after 8:00 p.m.on November3 be segregatedand kept“in a secure,safe and sealed container separate from other voted ballots,” and (2)that allsuch ballots,if counted,be counted separately.Pa.Dep’t of State,PennsylvaniaGuidancefor Mail-inand Absentee Ballots ReceivedFromthe UnitedStatesPostalService After 8:00 p.m.on Tuesday, November3,2020 (Oct.28, 2020); Pa.Dep’t of State,CanvassingSegregatedMail-inand Civilian Absentee Ballots Receivedby MailAfter 8:00 p.m. on Tuesday,November3,2020 and Before 5:00 p.m. on Friday,November6,2020 (Nov.1,2020).”

The proceduralhistory in this matteris complicated,and multiplecourtshave ruled in various contexts. But the principalremainingissue pendingbeforethe Supreme Court is this:“Do State courts and executiveofficialshaveauthorityto alter legislativelyestablishedelection rules,despite the U.S. Constitution’svesting of authority to set the rulesfor federal elections in Statelegislatures?” Briefingon a petitionfor certiorariseekingSupreme Courtreview is complete now,and the Court could issue its decision on the petitionat any time. But to be clear,the parties involvedinthis case know that the matter being addressedwill not impact the outcome of the PresidentialElectioninPennsylvaniaor any other state. Indeed,the Petitioner,who supportsPresidentTrump’s positionin this case has argued in a recentbrief: “Inreality,however,this case is an idealvehicle [for Supreme Courtreview],in partpreciselybecause it will notaffect the outcome of this election.”

VI. Wisconsin

A. Caseslitigatedin FederalCourt

DonaldJ. Trumpv. WisconsinElectionsCommission,et al.

In FederalDistrict Court for the Eastern Districtof Wisconsin, and then on appeal in the Seventh Circuit, two Trump appointees,Judges Ludwig and Scudder,ruled against the President. The case addressed a series of issues relating to Wisconsin ElectionCommission proceduresfor addressing absentee ballots during the pandemic. The President’s counsel argued that those procedureswere at

17 odds with WisconsinLegislativeenactmentsand thusunconstitutionalundertheElectorsClauseof ArticleIIof our federalConstitution.

At the District Court, Judge Ludwig concluded that the President had standing and presented federal claims. He conducted an expedited hearing on the merits of the President’s claims before ruling. Judge Ludwig summarized his conclusion as follows:

“And,on the meritsof plaintiff’s claims, the Court now further concludes that plaintiff has not proved that defendants violated his rightsunder the Electors Clause.To the contrary, the record shows Wisconsin’s PresidentialElectors are beingdeterminedin the very manner directed by the Legislature, as required by Article II,Section 1 of the Constitution.”

Judge Ludwigalso explained how the Wisconsin Legislature specifically created the Wisconsin Election Commission (WEC) to carry out the election,and delegated to the Commission specific authority to create procedures for addressingelection related issues (including absentee balloting) and created a right to seek relief instate court to remedy any “alleged irregularity,defect or mistake” related to the election:

“The WisconsinLegislaturehas also establishedlawsdetailingthe particularsof election administration;these details are set forth in Chapters5 to 12 of the WisconsinStatutes. For thelast five years,responsibilityfor theadministrationof Wisconsinelectionshas restedwith the WEC.TheWisconsinLegislaturecreatedthe WEC in 2015 specificallyto “havethe responsibilityfor the administrationof … laws relatingto electionsand election campaigns.”2015 Wis.Act 118§4; Wis.Stat.§5.05.The WisconsinLegislaturehas also assignedpowersand duties under the stateelectionlaws to municipaland county clerks, municipaland countyboardsof canvassers,and in Milwaukee,themunicipaland county boardsof electioncommissioners.Wis.Stat.§§7.10,7.15,7.21.TheWisconsinLegislature has directedthatthese officials,alongwiththeWEC,administerelectionsin Wisconsin. See Wis.Stat.chs.5 to 10 and 12.To carry out these duties,the legislaturehas delegated significantauthorityto theWEC. … For the determinationof PresidentialElectors,the WisconsinLegislaturehas directedthe WEC to “preparea certificateshowingthe determinationof the resultsof the canvassand the namesof thepersonselected.”Wis. Stat.§7.70(5)(b).Thelegislaturehas furtherdirectedthat“the governorshallsign [the certificate],affix thegreat seal of thestate,and transmitthecertificateby registeredmail to the U.S.administratorof generalservices.”Id. … Inadditionto logisticallyadministering the election,the WisconsinLegislaturehas directedthe WEC to issue advisoryopinions, Wis.Stat.§5.05(6a),and “[p]romulgaterules …applicableto all jurisdictionsfor thepurpose of interpretingor implementingthelaws regulatingtheconductof electionsor election campaigns.Wis.Stat.§5.05(1)(f).TheWEC isto“conductor prescriberequirementsfor educationalprogramsto informelectorsabout votingprocedures,votingrights,and voting technology.”Wis. Stat.§5.05(12). Finally,the WisconsinLegislaturehasprovideddetailed recountprocedures.Wis.Stat.§9.01.After requestinga recount,“any candidate… may appealto circuit court.” Wis. Stat.§9.01(6).The legislaturehasalso directedthat “[Wis. Stat.§9.01] constitutesthe exclusivejudicialremedyfor testingthe right to holdan electiveofficeas the resultof an allegedirregularity,defect or mistakecommittedduring the votingor canvassingprocess.”Wis. Stat.§9.01(11).”

Judge Ludwigthen concludedthat the WEC did not act inconsistentlywith themannerprovided bythe WisconsinLegislaturefor conductingthe electionand selectinga slate for theElectoralCollege:

“The approach,form,method,or modethe WisconsinLegislaturehasset for appointing Presidentialelectorsisby “generalballotat the generalelection.Wis.Stat.§8.25(1).There

18 is no disputethat this is precisely howWisconsin election officials,includingall the defendants,determinedthe appointmentof Wisconsin’sPresidentialElectorsin the latest election.They used “generalballot[s] at the general election for choosing the president and vice president of the UnitedStates” and treated a “vote for the president and vice president nominationsof any partyis a vote for the electors of the nominees.”Absent proof that defendantsfailed to follow this “Manner”of determiningthe state’s Presidential Electors,plaintiff has not and cannot show a violation of the Electors Clause.”

And JudgeLudwigalso explainedexplicitlywhy the WEC actionsregardingabsenteeballotswere consistentwith the enactmentsof theWisconsinLegislature:

“Theseissues are ones the WisconsinLegislaturehas expresslyentrustedto the WEC.Wis. Stat.§5.05(2w)(“Theelectionscommissionhasthe responsibilityfor the administrationof chs.5 to 10 and 12.”).When the legislaturecreatedtheWEC,it authorizedthe commission to issueguidanceto help electionofficialsstatewideinterpretthe Wisconsinelection statutesand newbindingcourt decisions.Wis. Stat.§5.05(5t).The WEC is also expressly authorizedto issue advisoryopinions,Wis. Stat.§5.05(6a),and to “[p]romulgaterules … applicableto alljurisdictionsfor the purposeof interpretingor implementingthe laws regulatingthe conductof electionsor electioncampaigns.”Wis. Stat.§5.05(1)(f).The WisconsinLegislaturealso directedthat the WEC would have“responsibilityfor the administrationof … laws relatingto electionsand electioncampaigns.”Wis.Stat.§5.05(1). In sum, far from defyingthe will of the WisconsinLegislaturein issuingthe challenged guidance,the WEC was in fact actingpursuantto the legislature’sexpressdirectives.… Thus,the guidancethatplaintiffclaimsconstitutesan unconstitutionaldeviationfrom the WisconsinLegislature’sdirection,is, to the contrary,the direct consequenceof legislature’s expresscommand. And,defendantshaveactedconsistentwith the “Manner”of election administrationprescribedby the legislature.”

“Because plaintiff has failed to show a clear departurefrom the Wisconsin Legislature’s directives,his complaint must be dismissed. As Chief Justice Rehnquist stated,“in a Presidentialelection the clearly expressed intent of the legislature must prevail.”Bush v. Gore, 531U.S. 98,120 (2000) (Rehnquist,C.J.,concurring).That is what occurred here. There has been no violation of the Constitution.”

As noted,the United States Court of Appeals for the Seventh Circuit affirmed Judge Ludwig’s ruling,and addressed the issues in additional detail. Judge Scudder, also a Trump appointee, wrote for the unanimous three judge panel, explaining:

“We agree that Wisconsin lawfully appointed its electors in the manner directed by its Legislature and add that the President’s claim also fails because of the unreasonable delay that accompanied the challenges the President now wishes to advance against Wisconsin’s election procedures.”

“On the merits, the district court was right to enter judgment for the defendants. We reach this conclusion in no small part because of the President’s delay in bringing the challenges to Wisconsin law that provide the foundation for the alleged constitutional violation. Even apart from the delay, the claims fail under the Electors Clause.”

“In his concurringopinion in Bush v. Gore,Chief Justice Rehnquistsuggested that the proper inquiry under the ElectorsClause is to ask whether a state conductedthe election in a manner substantially consistent with the “legislative scheme” for appointingelectors. 531U.S.98,113 (2000) (Rehnquist, C.J., concurring). . . . Whatever actions the

19 Commissiontookhere,ittookundercolorof authorityexpresslygrantedto it bythe Legislature.”

B. PrincipalCasein StateCourt

After a recount conducted in Wisconsin increasedcandidate Biden’s lead,President Trump’s campaign filed suit in State Court in Wisconsin arguingthat the absentee votingproceduresin two specific heavilydemocratic Wisconsin counties violated Wisconsin law. A Wisconsin state court trial judge conducted a hearing and then on December 11,2020 entered findings against the President. The matterthen reached the Wisconsin Supreme Court on appeal. That court again ruled against the President 4-3,which multiple concurrencesand dissents.

The issueslitigatedrelatedto absenteeballotproceduresduringthe pandemicin the two specific heavilydemocraticcounties selectedby the President’scounsel. The casedid not address similar issues state-wide,or in other countieswithvote totals predominantlyfavoringthe President. Oneissuerelated to a county determinationthat, pursuantto the Governor’s“Safer at Home”pandemicorder,voters could qualify as “indefinitelyconfined”due to illness,and thus vote by mailor drop boxwithout showing identificationin person. The President’scounselsought to disqualifyevery absenteeballotin the two countiesof an“indefinitelyconfined”personregardlessof whetherthat “confinement”relatedto the pandemicor not. Another issue relatedto ballotscollectedby volunteersat variouseventsin Madison, Wisconsinnamed“Democracyin the Park.”

Judge Hagedorn, appointed by former Republican Governor Scott Walker, wrote the majority opinion. The majority first ruled against the Plaintiff as to the application of the definition of “indefinitely confined” – “The challenge to the indefinitely confined voter ballots is meritless on its face.” As a concurrence explained:

“Although the numberof individualsclaimingindefinitelyconfined status has increased throughout the state, the Campaign asks us to apply this blanket invalidationof indefinitely confined voters only to ballots cast inDane and MilwaukeeCounties. . . . The Campaign's request to strikeindefinitelyconfined voters in Dane and MilwaukeeCounties as a class without regard to whether any individualvoter was in fact indefinitelyconfinedhas no basis in reason or law;it is wholly without merit.”

Next,the Courtdeclinedto addressthemeritsof other claims,explainingthatthe doctrineof “laches”applied:

“Suchdoctrineis appliedbecausethe efficientuse of public resourcesdemandsthat a court not allowpersonsto gambleon the outcomeof an electioncontestand then challengeit when dissatisfiedwith the results,especiallywhenthe same challengecould havebeenmadebeforethe public is put throughthe time and expenseof the entire electionprocess.Thusif a partyseekingextraordinaryrelief in an election-relatedmatter fails to exercisethe requisitediligence,lacheswill bar the action. … Althoughit disagrees the elementswere satisfiedhere,theCampaigndoesnotdisputethe propositionthat lachesmaybar an untimelyelectionchallenge.This principleappearsto be recognizedand applieduniversally.… Therelevantelectionofficials,as wellas Vice PresidentBidenand SenatorHarris,had no knowledgea claim to thesebroadcategoriesof challengeswould occur.The Campaign'sdelayin raisingtheseissues was unreasonablein the extreme,and the resultingprejudiceto the electionofficials,other candidates,votersof the affected counties,and to votersstatewide,isobviousand immense.”

Addressingthe “Democracyin the Park”eventsspecifically,the majorityexplained:

20 “Whenthe eventswereannounced,an attorney for the WisconsinLegislaturesent a warning letter to the Cityof Madisonsuggestingthe eventswereillegal.The Cityof Madisonrespondedthat the events were legallycompliant,offeringreasonswhy.Although these events and the legislature'sconcernswere widelypublicized,the Campaignnever challengedtheseevents,nor did any other tribunaldeterminethey were unlawful. The Campaignnowasksusto determinethat all17,271absenteeballots collectedduring the "Democracyin the Park"eventswereillegallycast. Once again,when the events were announced,the Campaigncould have challengedits legality.It did not.”

The Majorityconcluded:

“Our lawsallow the challenge flag to bethrown regardingvarious aspectsof election administration.The challengesraised by the Campaignin this case, however,comelong after the last play or even the last game; the Campaignis challengingthe rulebook adopted before the season began.Electionclaims of this type must be brought expeditiously.The Campaignwaited untilafter the election to raiseselective challenges that could havebeen raised long beforethe election.We conclude the challenge to indefinitelyconfined voter ballots is without merit,and that lachesbarsrelief on the remainingthree categoriesof challengedballots.”

Andthe concurringjusticesadded:

“As acknowledgedby the President'scounsel at oralargument,the President would have the people of this country believethat fraud took placein Wisconsin duringthe November 3,2020 election.Nothingcould befurther from the truth.The President failed to pointto even one vote cast in this election by an ineligiblevoter; yet he asks this court to disenfranchise over 220,000 voters. The circuit court,whose decision we affirm, found no evidence of any fraud.”

The three dissenting members of the Wisconsin Supreme Court each opposed application of the doctrine of laches, explaining that the people of Wisconsin deserved clarity on the law applicable for each of the circumstances identified:

“Our constitutional responsibility is to analyze the law and determine if it was followed regardless of whether any remedy might be available. In this way future elections benefit from our analysis.”

“Petitioners assert troubling allegations of noncompliance with Wisconsin's election laws by public officials on whom the voters rely to ensure free and fair elections. Itis our solemn judicial duty to say what the law is. The majority'sfailure to discharge its duty perpetuatesviolations of the law by those entrusted to administer it. I dissent.”

Finally,one dissenter declined to reach a conclusion as to the “indefinite confinement” issue with absenteeballots,noting that the court lacked “sufficient information… to determinewhether they lawfully asserted that they were indefinitely confined prior to receivingan absenteeballot.” And multiple dissenters questioned the legality of the “Democracyin the Park” events. None of the dissenters explainedwhether or how a contrary ruling on the subject issues could changethe outcomeof the election.

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