GOP-led states back Trump’s legal drive to challenge electionNovember 10, 2020
Republican-controlled state governments on Monday began throwing their weight behind President Donald Trump’s legal drive to challenge the results of last week’s presidential election.
A coalition of Republican attorneys general filed an amicus brief at the U.S. Supreme Court urging the justices to formally take up and resolve a dispute from Pennsylvania over a ruling that the state’s Supreme Court issued in September granting three extra days for the receipt of mail-in ballots cast in last Tuesday’s election.
The 10 attorneys general aligned their states with arguments from Trump’s presidential campaign, the Pennsylvania Republican Party and a pair of GOP state legislative leaders that the Pennsylvania Supreme Court’s decision usurped powers that the Constitution reserves for state legislatures.
“The power is specifically granted to state legislatures to direct time, place and manner [and] frameworks for their state’s election,” Missouri Attorney General Eric Schmitt, who led the brief, said at a news conference on Monday. The Pennsylvania state Supreme Court “overstepped their bounds and encroached on the legislature’s authority,” he added.
Additionally, the states embraced the president’s arguments about widespread election fraud, citing isolated cases from past elections and a database from a conservative think tank that an investigative report from the PBS investigative program “Frontline” recently described as overhyped.
While the brief was prepared under the auspices of the Republican Attorneys General Association, Oklahoma Attorney General Mike Hunter insisted the submission did not amount to a political intervention on behalf of Trump.
“This is a horrible precedent,” Hunter said of the Pennsylvania court ruling. “This is not a political exercise.”
The brief argues that mail balloting is most susceptible to fraud, highlighting prominent cases from past elections.
Election administrators do, generally, agree that mail voting has a slightly higher risk associated with it compared with in-person voting. However, they say that American elections are largely fraud-free, that isolated and sporadic cases do not prove widespread fraud, and that various safeguards in place protect the integrity of the election.
Trump’s lawyer Jay Sekulow suggested on Monday that many of the states would argue that their interests are affected by the outcome of the Pennsylvania fight and other election-related litigation because malfeasance in any state dilutes the votes of electors in other states.
“These other states are impacted by what happens in Pennsylvania if there is in fact things that have happened in Pennsylvania that are not appropriate, that are illegal — violate the law, the electors of these other states … end up basically having their votes depressed,” Sekulow said on his daily webcast and radio show.
Sekulow also urged patience from the president’s allies as his legal team seeks to coordinate lawsuits in various states. So far, the suits don’t seem capable of reversing the sizable leads President-elect Joe Biden has established in pivotal battleground states such as Pennsylvania, Arizona, Wisconsin and elsewhere.
Sekulow also appeared to acknowledge that Trump’s legal team faced an uphill fight.
“I understand the anxiety and the frustration, but there are not going to be decisions that come down in the next two or three days that are going to end this one way or another or overturn this,” Sekulow said on “Jay Sekulow Live,” which is produced by the conservative legal nonprofit American Center for Law and Justice. “The electors have not met. The Electoral College has not met.”
“There are going to be … additional lawsuits filed in the next several days,” the lawyer and frequent Supreme Court litigator said. “It could be the end of the week for some of them. I need to tell everybody this: that this is not a simple task. It’s a tall order. … It’d be a miracle, in one sense, because everything has to line up, but you don’t stop fighting until there’s a point where the courts rule against you. That’s it. We respect the rule of law.”
Addressing the prospect of the litigation reversing the result in favor of Biden, Sekulow was circumspect: “You have to line up a lot of dominoes, as we say, would have to fall in the right direction for that to happen.”
The number of late-arriving ballots in Pennsylvania — those postmarked by Election Day but received between the close of polls and Friday, along with those received in that timeframe without a postmark unless a preponderance of evidence indicated they were mailed after Nov. 3 — is unlikely to sway the final result in the state. Pennsylvania officials had already begun to set aside those ballots, even before Justice Samuel Alito’s order on Friday requiring them to do so. Biden currently sits on a lead of more than 45,000 votes.
The brief from the Republican attorneys general also targeted ballots that arrive after Election Day, regardless of when they were postmarked, as particularly problematic.
“The Pennsylvania decision here extended that post-Election Day deadline to many more voters in Pennsylvania,” Schmitt wrote in the brief. “And, in the process, it stripped away critical safeguards against fraud.”
A separate friend-of-the-court brief filed earlier on Monday by Ohio Attorney General Mike Yost struck a more restrained tone than the multi-state, brief from the Republican attorneys general, taking care not to endorse the president’s team’s claims of widespread electoral fraud, or to suggest that ballots that arrive after Election Day shouldn’t be counted. Ohio, in fact, allows ballots that are postmarked by the Monday before Election Day and received after the fact to count.
Yost, a Republican, aligned his state with arguments about the so-called independent legislature theory, which argues that state legislatures have the authority to dictate election laws in states, and that there’s been significant judicial overreach when courts decide otherwise.
That theory was made perhaps most famously in then-Chief Justice William Rehnquist’s concurring opinion in Bush v. Gore, the Supreme Court fight that effectively decided the 2000 presidential election. Four current justices have either outright endorsed or signaled some level of support for Rehnquist’s theory: Clarence Thomas (who signed on to Rehnquist’s original concurring opinion), Brett Kavanaugh, Neil Gorsuch and Alito.
“Ohio’s interest in this case also has nothing to do with any abstract concern about counting ballots received after Election Day,” Yost wrote. “Ohio is interested in this case because reversal is crucial to protecting the Constitution’s division of authority over state election laws.”
One prominent election law expert questioned Sekulow’s statement that the results in Pennsylvania and the manner in which that state selects its electors affect other states.
“I don’t even understand the concept here,” said Rick Hasen, a law professor at the University of California at Irvine. “Each state has its way of choosing its own electors. Even if Pennsylvania were reversed, that has no effect on the electoral votes of other states.”
Sekulow did not predict victory in the legal battle over the election, but he did say he expected the Supreme Court to wind up being the arbiter of whether Trump is reelected or defeated.
“This is the very beginning of this, way in the beginning,” the Trump attorney said. “The ultimate determination of this I do not believe is going to be made by the Supreme Court of Pennsylvania, the Supreme Court of New Mexico, or Arizona, actually, or the Supreme Court of Wisconsin or Michigan. I think the ultimate determinations are going to be here, at the Supreme Court of the United States. I think that’s the end result of where this goes.”