FROM:Rep.LizCheney (R-WY)

TO: HouseRepublicanColleagues

DATE: January 3, 2021

RE:2020 PresidentialElectionChallenges in Arizona, Georgia,Michigan,Nevada,Pennsylvania and

Wisconsin, and Our ConstitutionalProcess

Inconnectionwith our recentConferencemeeting,a numberof membershave requestedfurther

informationon how preciselyArticle IIand the 12thAmendmentto our ConstitutionaddressCongress’

role and responsibilitiesincountingelectoralvotes. Othershave 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 decisions in each of the states. As you will see,there is substantial

reasonfor concernabout the precedentCongressionalobjectionswillset here. By objectingto electoral

slates,membersare unavoidablyassertingthat Congresshas the authority to overturnelectionsand

overrulestateand federalcourts. Such objectionsset an exceptionallydangerousprecedent,threatening

to steal states’ explicit constitutionalresponsibilityfor choosingthe Presidentand bestowingit insteadon

Congress. This is 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 formedcould wrap up its work in 10 days;indeed,the subsequent

debate at both the state and federal levelwould likelyrequiremonths. Did those proposinga new

commissionrealize that they were in essenceproposingto delay the inaugural? Did they 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 authority to 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 actual text of our

foundingdocuments.

Article IIand the 12th Amendmentto our Constitutiongovernhow 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 numberof electors,equal to thewholenumberof Senatorsand Representativesto which the

Statemaybeentitledin the Congress.” “The personhavingthe greatest Numberof [ElectoralCollege]

votes for President,shall be the President.”

2020 Presidential ElectionChallenges in Arizona, Georgia,

Michigan, Nevada, Pennsylvania and Wisconsin, and Our

Constitutional Process

ArticleIIand the 12thAmendment

InaccordancewithArticle II,everyStateLegislaturehas enacteda set of rules governingthe

manner in which the electionof the Presidentin that Statewill beconductedand how electorswillbe

selected. Those lawsnotonly instructstateelectionofficials howto conductelections(and explicitly

delegateauthority to thoseofficialsfor that purpose),but also set forth a statelaw process for

challengingan electionwhen problemsarise. The legalprocessesfor challengingthe electionvary state

to state,but generallyprovidea procedurefor recountsand audits,and an opportunityto litigatedisputed

issuesin statecourt. Incertaincircumstances,itmaybe possibleto bringan appropriateclaim in Federal

Court as well (for example,if a Statehas violated the U.S.Constitutionor federallaw),but FederalCourts

are boundto observetheConstitutionallimits on their jurisdiction(under Article III).

BecauseArticle IIcommits to the Statesthe authorityand 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 actingcontraryto state electionlaws. And

multiplejudgeshavefound that allegationsabout Dominionvotingmachinesand other issuesare not

supportedby evidence. (See the excerptsand summariesin SectionsI and IIbelow.)

Inadditionto committingthe powerand responsibilityfor selectingthe Presidentto thePeopleofthe States,Article IIand the 12thAmendmentalso explicitly identifytheexceptionallylimitedroleofCongressin this process. First,“the Presidentof theSenateshall receivecertifiedcopies of the electoral

votes from each state” and “in the presenceof the SenateandHouseof Representatives,open all thecertificates.” The votes“shall thenbecounted.” Nothingin ArticleII, the12thAmendmentor anyotherConstitutionaltextprovidesfor any debate,objectionor discretionaryjudgmentsby Congressinperformingthe ministerialtask of countingthevotes. Nothingin theConstitutionremotelysays thatCongressis the courtof last resort,with the authorityto second-guessand invalidatestate and federal

court judicialrulingsin electionchallenges. Indeed,theConstitutionaltext reads:“ThepersonhavingthegreatestNumberof [ElectoralCollege]votes for President,shallbethe President.” It doesnot say: “Thepersonhavingthe greatestNumberof [ElectoralCollege]votesfor President,shall bethe President,unless Congressobjects or Congresswants to investigate.” TheConstitutionidentifiesspecificallythe onlyoccasionswhen Congresscan takeanynon-ministerialaction– when no Presidentialcandidatehas a

majorityof theelectoralvotes: “[I]f no personhave such majority[of the electoralvotes counted],thenfromthe personshavingthe highestnumbersnot exceedingthreeonthe list of those voted for asPresident,theHouseof Representativesshallchoose immediately,byballot,thePresident…..”Thus,theConstitutionaltext tells us very clearly what Congress’roleis and isnot.

For most of our nation’shistory,the Framers’straight-forwardinstructionsregardingselectionof

the Presidentprevailed. In the aftermathof our nation’sCivilWar,officials in certainReconstructionErastategovernmentssubmittedcompetingslates of electors. In1887,Congresssoughtto resolvethoseissuesby enactingtheElectoralCount Act. A principalprovisionof that Act instructsthat a certificateidentifyingtheElectoralCollegeelectorsand their votes receivedfrom theGovernorof a stateshall beregardedas “conclusive.”3.U.S.C.§ 5.6. Althoughthe Constitutionalityof that Act has beenthesubject

of substantialdebate,herethere isno dispute that eachGovernorof the six statesat issuesubmittedanofficialcertificationof the election,and those electors’ votes have been transmittedto thisCongress.Thus,underthe ElectoralCount Act, thosecertificatesare conclusiveand must be counted. There is nodiscretionto do otherwiseunder that Act. Accordingly,boththeclear textof the Constitutionand theElectoralCount Act compelthesameconclusion– there isno appropriatebasis to object to theelectors

fromanyof 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 speculationrather thanduly pled facts.”

“[Georgia law] providesthat a petitionfor an electioncontest must set for the grounds for the election

context. [Georgia law] further providesthat it must set forth such factsas arenecessaryto ‘providea full

particularandexplicit statementof the causeof contest.’ Georgia’sSupremeCourt hasinterpretedthis to

requirea contestantto allegeand provea factualbasis showinggrounds for an electioncontestand to

prohibit a contestant from basinga 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 statea claim.”

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FederalCourts inGeorgia(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 plummetedand, ergo, invalid

ballots were passed over and counted.This argument is belied by the record; the percentage of absentee

ballots rejected for missing or mismatched informationandsignature is the exact same for the 2018

election and the General Election (.15%).”

ElectorsClause:“Woodargues Defendantsviolated the Electionsand ElectorsClauses becausethe

‘proceduresset forth in the [SettlementAgreement] for the handlingof defectiveabsenteeballotsisnot

consistentwith the laws of the Stateof Georgia,and thus,Defendants’actions. . . exceed their authority.’

… Statelegislatures—suchas the Georgia GeneralAssembly—possessthe authorityto delegate their

authorityover electionsto state officials in conformitywiththeElectionsand 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 Broughtby 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’allegedschemescausedvotes for PresidentTrump to be changedto votes for

VicePresidentBiden. Forexample,the closest Plaintiffsget to allegingthat physicalballotswere altered

in such a way is the followingstatement in 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 obtainany relief,much

lessthe extraordinaryreliefPlaintiffsrequest.”

State Courts inNevada(Extensive evidentiary analysis followinga 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: “Despiteour earlier order asking

appellants to identify specific findings with which they take issue,appellants havenot pointed to any

unsupported factual findings,and we have identified none.”

FederalCourtsinPennsylvania(includingdecisionwrittenbyTrump-AppointedFederalAppellateJudge):

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“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 regrettablygrant the proposed injunctivereliefdespitethe 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 cannot justify 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.”

StateSupremeCourt in Pennsylvania:

“Petitioners’challengeviolatesthedoctrineof laches given their completefailure to act with due diligence

in commencingtheir facial constitutionalchallenge,which was ascertainableuponAct 77’s enactment. It

is well-establishedthat “[l]achesis an equitabledoctrine that bars relief when a complainingpartyis guilty

of wantof duediligence in failingto promptly institutean action to the prejudiceof another.”Stilp v.

Hafer,718 A.2d 290,292 (Pa.1998).… Thewant of due diligencedemonstratedin this matter is

unmistakable.Petitionersfiled this facialchallengeto the mail-invoting statutoryprovisionsmore than

oneyear after the enactmentof Act 77. At the time this actionwas filed on November21,2020,millions

of Pennsylvaniavotershad alreadyexpressedtheir will in 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 diligence in presentingthe instantclaim.”

FederalCourts reviewingWisconsinelectionallegations(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 rightsunder 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.”

“Insum, 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 consequenceof legislature’s express command.”

“Inhis concurringopinion in Bushv. Gore,Chief Justice Rehnquist suggested that the proper inquiryunder

the Electors Clause is to ask whether a state conducted the election ina 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.”

StateSupremeCourt in 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 PrincipalCasesinallSix States

I. Arizona

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 inspectionof 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:

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:

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 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:

A. LitigationinArizonaStateCourt

“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.”

“UnderArizona law,voterswho vote by mailsubmit their ballot inside an envelope that is

also an affidavit signed by the voter. Electionofficials reviewall mail-inenvelope/affidavits

to comparethe signatureon them withthe signature in voter registrationrecords.If the

official is “satisfied that 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.. . . MaricopaCounty election officials

followed this processfaithfully in 2020.”

“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 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

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Tyler Bowyer,et al., v.DougDucey,et al.,FederalDistrictCourt,Arizona,CV-20- 02321-PHX-

DJH,12/09/20.Judge DianaHumetewa.

In addition to litigatinginthe Arizona state judicialsystem,plaintiffssupportingPresidentTrump

also attemptedto bring multipleclaims in FederalDistrict Court for the Districtof Arizona,with factual

allegationsaddressing“destructionof absentee ballots,” Dominionvotingmachines,voting fraud and

manipulation,problemswith the election observerprocess,and alleged “dilutionof lawful votes.” The

Court explainedwhy severalof the allegationswere insufficient to state a federalConstitutionalclaim,

includingbecause the plaintiffslackedstanding under ArticleIIIof the Constitution. The Court also

addressedplaintiffs’ allegationsof fraud specifically. Belowis a selectionof excerpts from the Judge’s

opinion on those issues:

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 forceof law.The Court recentlyconsidered a

challenge to an election processand granted reliefwhere the county recorderadopted a

practice contrary to 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,” letalone

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 trial court decision and confirming the election of the Biden

Electorsunder A.R.S.§ 16-676(B).”

B. Litigationin FederalCourtinArizona

“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 Complaint isequally void of plausibleallegationsthat Dominionvotingmachineswere

actuallyhackedor compromisedin Arizona during the 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 includedletters from concernedcitizens,Arizona elected

officials,and UnitedStates senators.Plaintiffseven attachan affidavitof an anonymous

witness with connectionsto the late VenezuelandictatorHugoChavez claimingto be privy

as to howofficialsin Venezuelariggedtheir electionswith thehelp 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 initialmatter, 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

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II.Georgia

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

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.

1 Amongtheattorneysjoiningthe AttorneyGeneralon that briefwas Jody Hunt,PresidentTrump’s

former appointeeasAssistantAttorneyGeneralfor theU.S.Departmentof Justice’sCivilDivision.

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 Courtwith 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 publicsphereof 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.”

A. CaseslitigatedinGeorgiaStateCourt

“Since the Novemberelection,there have beenat least six Georgia casesallegingthat state

electionofficials violated the lawby acting in 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(CobbCnty.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 SuperiorCourtsof Fulton

County and Cobb County,Georgia haverejectedall the claims except for in onecase,

which was filed just this week and is thus stillwinding throughGeorgia’scourts just as the

GeorgiaLegislatureenvisioned.”

“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, includinga historic 100 percent manual recount—all in accordance

with state law. It has, consistent with its authority under 3 U.S.C. § 5 [theElectoralCount

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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:

Inoneremainingstate court case,Trumpet al.v. Raffenspergeret al., No.2020-CV-343255,

counselfor PresidentTrump initiallysoughtan emergencyhearingto addresshis claimsof fraudand

Act], authorizeditscourtsto resolveelectiondisputes.…The Legislaturehasgiven the

ElectionBoardexpressauthority to “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,Georgiaundertooka machinetabulation

recountof the nearly 5 millionballots. Again,the recountconfirmedthe initialelection

results.”

“Evenif credited,theComplaint’sfactualallegationsdo not plausiblysupporthis claims.The allegationsintheComplaintrest on speculationrather than dulypled facts.Theycannot,as a matterof law,sustainthis contest.Count I,which alleges that 20,312people

mayhavevoted illegally in Georgia,reliesupona YouTubevideo whichpurportedlyisbaseduponUnitedStatesPostalServicemailforwardinginformation.Pet.¶ 1.CountIIallegesthat the signature-matchingprocessresultingfrom a SettlementAgreemententeredintoby the Stateninemonthsago is inconsistentwith Georgia’selectioncode,andallegedlyviolates the federalConstitution.3Pet.¶ 17.TheCourt findsthat Plaintiff’s

allegations,as pled,do not supportan allegationof improprietyor a conclusionthatsufficientillegalvotes were cast to changeor place in doubt theresultof the election.Theseargumentshavebeenofferedand rejectedin other courts.See Wood,2020 WL6817513,at *10.Furthermore,the statutorychangesput inplaceby the GeneralAssemblypermittingvoters to cure signatureissueson their ballot as a resultof 2019 legislation,as

well as regulatorychangesadoptedby the StateElectionBoardcontemporaneouswithexecutionof theSettlementAgreement,wouldbeexpectedto result in fewer signaturerejections.This wouldnot bebecauseillegalvotes are somehowevadingreview,butbecausesubjectingsignaturesto morethoroughverificationand permittingvoters to curesuspectederrorsshouldreducethenumberof lawfulballotsthatareimproperlythrown

out.”

Likewise,in the DellaPollacase,a GeorgiaStateCourtJudgeconcludedas follows:

“[Georgia law] providesthat a petitionfor an electioncontest must set forth the grounds

for the electioncontext. [Georgia law] further providesthat it must set forth such factsas

are necessaryto ‘providea fullparticularand explicit statementof the causeof contest.’

Georgia’sSupremeCourthas interpretedthis to requirea contestant to allege and provea

factualbasis showinggrounds for an electioncontest and to prohibita contestant from

basinga contestona 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 statea

claim.”

9

illegality,butthen withdrewthatemergencymotionon December8,2020,cancelingthe imminent

hearingand delayingthecase. This has slowedthe ultimateresolutionof that action.

LinWoodv.Raffensperger,FederalDistrictCourt for 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 officials in the days after the

election.

Judge Grimberg,a Trump appointee,conducteda hearingwith live witnesstestimonybefore

issuinghisruling. Hisopinionbeginsby describingthe foundationalConstitutionalproblemswith

PlaintiffWood’s federalsuit,includingthat Wood lackedstandingand notingthat Wood was relyingupon

a 199311th Circuit precedentthat is “no longer good law.” JudgeGrimbergalso explainedwhy courts

require the 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:

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.”)

B. PrincipalCaseslitigatedinFederalCourtinGeorgia

“EvenassumingWoodpossessedstanding,and assumingCountsI and IIare not barredby

laches,theCourtnonethelessfindsWoodwouldnot be entitledto thereliefheseeks.”

Allegationsabout Absentee Ballots:“Wood’sargument is that theproceduresin the

SettlementAgreement regardinginformationand signaturematchso overwhelmedballot

clerksthat the rateof rejectionplummetedand,ergo,invalidballots were passedover and

counted.Thisargumentis beliedby the record;the percentageof absenteeballots rejected

for missingor mismatchedinformationand signatureis theexact same for the 2018

electionand the GeneralElection(.15%).This is despite a substantialincreasein the total

numberof absenteeballotssubmittedby votersduring the GeneralElectionas compared

to the 2018 election.”

Electionsand ElectorsClauses:“In relevantpart,theConstitutionstates:‘The Times,Places

and Mannerof holdingElectionsfor Senatorsand Representatives,shallbeprescribedin

each State by theLegislaturethereof.” U.S.Const.art.I,§ 4,cl.1.This provision—

colloquiallyknownas the ElectionsClause—vestsauthority in thestates to regulatethe

mechanicsof federalelections.Fosterv. Love,522 U.S.67, 69 (1997).The ‘ElectorsClause’

of the Constitutionsimilarlystates that “[e]achState shallappoint,in such Manneras the

Legislaturethereofmaydirect,a Numberof [Presidential]Electors.”U.S.Const.art. II,§ 1,

cl. 2. Wood argues Defendantsviolated the 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

10

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:

III. Michigan

the roleof theGeorgiaGeneralAssembly—andtherebyviolatedthe UnitedStatesConstitution—byenactingadditionalsafeguardsregardingabsenteeballotsnot found in

the GeorgiaElectionCode…. State legislatures—suchas theGeorgiaGeneralAssembly—possesstheauthorityto delegatetheir authorityover electionsto state officialsinconformitywith the Electionsand ElectorsClauses. [CitingU.S.SupremeCourtprecedent.]Ariz.State Legislature,576 U.S.at816 (“TheElectionsClause[ ] is notreasonablyreadto disarmStatesfrom adoptingmodesof legislationthat place the lead

rein in the people’shands. . . it is characteristicof our federalsystemthat Statesretainautonomyto establishtheir own governmentalprocesses.”).See also Cormanv. Torres,287F.Supp.3d 558,573 (M.D.Pa.2018)(“TheElectionsClause,therefore,affirmativelygrantsrightsto statelegislatures,and underSupremeCourtprecedent,to other entitiesto whicha statemay,consistentwith theConstitution,delegatelawmakingauthority.”)…

Recognizingthat SecretaryRaffenspergeris “thestate’schief electionofficial,”the GeneralAssemblyenactedlegislationpermittinghim(in his officialcapacity)to “formulate,adopt,and promulgatesuch rulesand regulations,consistentwith law,aswill beconduciveto thefair, legal,and orderlyconductof primariesand elections.”O.C.G.A.§ 21-2-31(2).TheSettlementAgreementis a manifestationof SecretaryRaffensperger’sstatutorilygranted

authority.It does notoverrideor rewritestate law. Itsimplyaddsan additionalsafeguardtoensureelectionsecurityby havingmorethan one individualreviewan absenteeballot’sinformationand signaturefor accuracybeforetheballot is rejected.Wooddoes notarticulatehowthe SettlementAgreementis not “consistentwith law”other than it notbeinga verbatimrecitationof the statutorycode.TakingWood’sargumentat face value

rendersO.C.G.A.§ 21-2-31(2)superfluous.A stateofficial—suchas SecretaryRaffensperger—couldneverwieldhis or her authorityto makerulesfor conductingelectionsthat hadnototherwisealreadybeenadoptedby the GeorgiaGeneralAssembly.The recordin this case demonstratesthat, if anything,Defendants’actionsin enteringintothe SettlementAgreementsought to achieveconsistencyamongthecountyelection

officialsin Georgia,which furthersWood’sstatedgoals of conducting“[f]ree,fair,andtransparentpublicelections.”

“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.”

11

A number of cases were launched in Federaland State Courts in Michiganchallenging different

elementsof the Michiganelection. Certain of the cases were summarilydismissed by the courts for a

rangeof pleading or proceduralerrors – includingsuing the wrong state official. Certain other cases were

voluntarilydismissed 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 Courtof Claims for Michigandescribed one set of evidentiaryissuesthis way:

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. Forexample,Judge Parker wrote:

“This‘supplementalevidence’ is inadmissibleas hearsay.TheassertionthatConnarnwas

informedby an unknownindividualwhat “other hiredpollworkersat her table” had beentold is inadmissiblehearsaywithinhearsay,and plaintiffshaveprovidedno hearsayexceptionfor either levelof hearsaythatwouldwarrantconsiderationof theevidence.SeeMRE801(c).The note—whichisvague and equivocal—islikewisehearsay. And again,plaintiffshavenotpresentedan argumentas to why theCourt could consider thesame,

given the generalprohibitionsagainst hearsayevidence.See Ykimoffv FooteMemHosp,285 MichApp 80,105;776 NW2d114(2009). Moreover,even overlookingtheevidentiaryissues,the Court notesthat therearestill no allegationsimplicatingtheSecretaryof State’sgeneralsupervisorycontrolover the conductof elections.. . . Not onlycan the reliefrequestednot issue against theSecretaryof State,who is theonly named

defendantin this action,but the factual recorddoes not support the reliefrequested.”

“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’allegedschemescaused votes for PresidentTrump to bechangedto

votes for Vice PresidentBiden.For example,theclosestPlaintiffsget to allegingthat

physicalballotswere altered in such a way is the followingstatement in 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 is requiredto obtain any relief,much less

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’ requested injunctionwould “upend the statutory

processfor election certificationand the selection of PresidentialElectors. Moreover,it

w[ould] disenfranchisemillions of Michiganvoters in favor [of] the preferencesof a

handfulof 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

PresidentTrump’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 indeedconducta 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:

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.

DominionVotingMachines:“ClarkCounty,alongwith 15 othercountiesin Nevada usesDominionVotingSystemsto conductin personvoting…. These voting systemsaresubjectto extensivetestingand certificationbeforeeach electionand areauditedaftereach

election. For example,the electronicvotingsystemsusedbyClarkCountywerecertifiedby the federalgovernmentwhen they were first broughton the market,as wellas any timea hardwareor softwarecomponentis upgraded. Thiscertificationisdoneby a votingsystemtest laboratory. The electronicvotingmachinesare also tested and certifiedby theSecretary.… These voting machinesare also auditedagainst a paper trail that is generated

… when votersmake their selections. A ClarkCountyvoting machinewill not operateunlessit isconnectedto a printer… which createsa paper recordthat voterscan review.…After each election,ClarkCounty,like Nevada’sother counties,conductsa randomauditof itsvotingmachines. Specifically,it comparesthe paper trail createdby theprinteragainstthe resultsrecordedby the voting machineto ensurethey match.… Clark County

conductedthis audit followingthe Novemberelectionand there wereno discrepanciesbetweenthepaper 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

consistsof 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 possibleupondepositionsand

writtenor oral argumentas 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-courtstatementsoffered in evidenceto prove the truthof the

mattersasserted. Most of thesedeclarationswere self servingstatementsof littleor no

evidentiaryvalue. TheCourt nonethelessconsidersthe totalityof evidenceprovidedby

Contestantsin reachingand rulinguponthemeritsof their claims.”

13

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:

V. Pennsylvania

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 Legislatureprovide an avenue for absentee

“TheCourtquestionsMr.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 citations to facts and evidencethat heused to come to his

conclusionsand did not includea single exhibit to support any of his conclusions. The

Court finds that Mr.Gessler’s methodology is unsound because he based nearlyall of his

opinionson a handfulof affidavits that he took no steps to corroborate through

independent investigation.”

“As reflected herein, the Court finds that the expert testimony provided by Contestants

was of littleor no value. The Court did not exclude consideration of this evidence, which it

could have,but gave it very littleweight.”

Illegal or ImproperVotes: “Contestants allege that fraud occurred at multiple points in the

voting process in Nevada that exceed the margin of victory in the presidentialrace. … The

Court finds there is no evidencethat voter fraud ratesassociated with mail in votingare

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 madedetailed findings rebutting each of plaintiffs’ claims about illegality on each

of these topics.

“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.”

A. CasesFiledinStateCourt

14

voting for anyone who will not vote in person becausethey will be out of town on business,are prevented

fromvoting in person by illness,are physicallydisabled,are observinga religious holiday or are serving as

poll workers that day. As Pennsylvania explains in 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 going further and providing a broader provision for mail-in ballots:

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 brought their 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:

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 NOVEMBER3, 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 state law

and ruled as follows:

“Petitionerscontendthat by requiringthe GeneralAssembly to allowcertainvotersto castabsenteeballots,Article VII, § 14 somehowforbids the GeneralAssemblyfrom allowing

othersto vote bymail.Butthe inclusionof a particularlegislativeduty in the PennsylvaniaConstitutiondoesnotpreventtheGeneralAssemblyfrom craftingother legislationon thattopic.In fact,the PennsylvaniaConstitutionoriginallysaid “may” and nowsays “shall” inArticleVII,§ 14—achangemeantto further clarifythat thisprovisionprovidesa floor,nota 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 termdoesnotimpliedlylimit governmentauthority).Thus, thePennsylvaniaConstitutionprovidesthat the GeneralAssemblymust allowvoters in the enumeratedfour categoriesto cast absenteeballots,but may also go further—byexercisingits broadpower to“prescribe[]”thepermissible“method[s]”of voting,PA.CONST.art. VII,§ 4—andallow

othercategoriesof voters to votebymail,includingbyallowingany voter to opt to cast amail-inballot.”

“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. Inany event,‘[l]achesis not excusedby simplysaying,‘I did not know.’ If

bydiligencea fact can be ascertained,thewant 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.’”

“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

InDonaldJ. Trumpfor President,Inc.,et al v. Boockvar,theFederalDistrictCourt for the Middle

Districtof Pennsylvaniaaddressedplaintiffs’ concernswith what isknownas 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 thecounties in the state exercisedthis authority and othersdid not. Plaintiffs

argued that the unequalapplicationof this policy acrossthe state requiredthe Courtto throwout the

electionresult state-wide. TheCourt respondedas follows:

The FederalCourtof Appealsfor the ThirdCircuitaffirmedtheDistrictCourt ruling. JudgeBibas,

anothernomineeof PresidentTrump,wrote theextensiveopinion:

B. CasesFiledinFederalCourt

“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 but to 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,unpled inthe operative complaint

and unsupportedby evidence.In the UnitedStates of America, this cannot justify the

disenfranchisementof a singlevoter,let alone all the voters of its sixth most populated

state.”

“Plaintiffs’ claims fail becauseit is perfectly rationalfor a state to providecounties

discretionto notifyvoters that they maycure procedurallydefective mail-inballots.

Though states may not discriminatorilysanctionproceduresthat are likelyto burdensome

persons’ right to vote morethan others,they need not expand the right to vote in perfect

uniformity.All Plaintiffshave alleged is that SecretaryBoockvarallowedcounties 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 it is

not irrationalor arbitrary for a state to allowcounties to expand the right to vote if they so

choose,IndividualPlaintiffsfail to state an equal-protectionclaim.”

“Crucially,Plaintiffsfail to understandthe relationshipbetweenright and remedy.Though

every injurymust have its proper redress,a courtmaynot prescribea remedyunhinged

fromthe underlyingright beingasserted.Byseeking injunctiverelief 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 invalidatingthevotesof millionsof

others.Rather than requestingthat their votesbe counted,they seek to discreditscores of

othervotes,but only for onerace.This issimplynothowthe Constitutionworks.”

“Free, fair electionsare the lifebloodof our democracy.Chargesof unfairnessareserious.

Butcalling an electionunfairdoesnotmake itso. Charges requirespecific allegationsand

then proof.Wehave neitherhere. The Trump PresidentialCampaignasserts that

Pennsylvania’s2020 electionwas unfair.Butas lawyerRudolphGiulianistressed,the

Campaign“doesn’tplead fraud. . . . [T]hisis not a fraud case.” Mot.to DismissHr’gTr.

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

Another case filed in FederalDistrict Courtaddressed the State law deadlinefor receipt of mailed

ballots. This case hasnowbeen 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 marginof

victory in Pennsylvania. The matter relates to a PennsylvaniaState Court rulingextendingthe

Pennsylvaniastatue’sdeadline for receiptof mailed ballotsby a numberof days becauseCOVID-19

apparently threatened delays in maildelivery. On November6,2020, Justice Alito entered a brieforder,

requiringthat:

The proceduralhistory in this matteris complicated,and multiplecourtshave ruled in various

contexts. But the principalremainingissue pendingbeforethe SupremeCourt 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 certiorariseekingSupremeCourt review is completenow,and the Court could issue its

decisionon 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 casehas argued in a recentbrief:

“Inreality,however,this case isan idealvehicle [for SupremeCourtreview],in partpreciselybecause it

will notaffect the outcome of this election.”

VI. Wisconsin

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

absenteeballots during the pandemic. The President’s counsel argued that those procedureswere at

been counted.” Id.¶¶ 168,194,223,253.‘Upon informationand belief’ is a lawyerlyway

of saying that the Campaign does notknow that somethingis a fact but just suspects itor

has heard it.‘While legal conclusions can provide the framework of a complaint,they must

besupported 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.”

“All [Pennsylvania]county boardsof electionarehereby ordered,pendingfurtherorderof

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 besegregatedand kept“in a secure,safe and sealed

container separate from other voted ballots,” and (2)that all such ballots,if counted,be

countedseparately.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

CivilianAbsentee Ballots Receivedby MailAfter 8:00 p.m.on Tuesday,November3,2020

and Before5:00 p.m.on Friday,November6,2020 (Nov.1,2020).”

A. Caseslitigatedin FederalCourt

DonaldJ. Trumpv. WisconsinElectionsCommission,et al.

17

odds with WisconsinLegislativeenactmentsand thusunconstitutionalunder theElectorsClauseof

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:

Judge Ludwigalso explained howthe Wisconsin Legislature specifically created the Wisconsin

ElectionCommission (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 instatecourt to remedy any “alleged irregularity,defect or mistake” related to the

election:

JudgeLudwigthen concludedthat the WEC did not act inconsistentlywith themannerprovided

bythe WisconsinLegislaturefor conductingthe electionand selectinga slate for theElectoralCollege:

“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.”

“The WisconsinLegislaturehas also establishedlawsdetailingthe particularsof electionadministration;these detailsare set forth in Chapters5 to 12 of the WisconsinStatutes.For the last five years,responsibilityfor theadministrationof Wisconsinelectionshas

restedwith the WEC.TheWisconsinLegislaturecreatedtheWEC in 2015 specificallyto“havethe responsibilityfor the administrationof … laws relatingto electionsand electioncampaigns.”2015Wis.Act118§4; Wis.Stat.§5.05.The WisconsinLegislaturehas alsoassignedpowersand 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.TheWisconsinLegislaturehas directedthat these officials,alongwiththeWEC,administerelectionsin Wisconsin.See Wis.Stat.chs.5 to 10 and 12.To carry out these duties,the legislaturehas delegatedsignificantauthorityto theWEC.… For the determinationof PresidentialElectors,theWisconsinLegislaturehas directedthe WEC to “preparea certificateshowingthe

determinationof the resultsof thecanvassand the namesof thepersonselected.”Wis.Stat.§7.70(5)(b).Thelegislaturehas furtherdirectedthat “the governorshallsign [thecertificate],affix thegreat seal of thestate,and transmit thecertificateby registeredmailto the U.S.administratorof generalservices.”Id. … Inadditionto logisticallyadministeringthe election,the WisconsinLegislaturehas directedtheWEC to issueadvisoryopinions,

Wis.Stat.§5.05(6a),and “[p]romulgaterules …applicableto all jurisdictionsfor thepurposeof interpretingor implementingthe laws regulatingtheconductof electionsor electioncampaigns.Wis.Stat.§5.05(1)(f).TheWEC is to“conductor prescriberequirementsforeducationalprogramsto informelectorsabout votingprocedures,votingrights,and votingtechnology.”Wis.Stat.§5.05(12). Finally,the WisconsinLegislaturehasprovideddetailed

recountprocedures.Wis.Stat.§9.01.After requestinga recount,“any candidate… mayappealto circuit court.”Wis.Stat.§9.01(6).The legislaturehasalso directedthat “[Wis.Stat.§9.01] constitutesthe exclusivejudicialremedyfor testingthe right to holdanelectiveofficeas the resultof an allegedirregularity,defect or mistakecommittedduringthe votingor canvassingprocess.”Wis.Stat.§9.01(11).”

“Theapproach,form,method,or modethe WisconsinLegislaturehasset for appointing

Presidentialelectorsisby “generalballotat the generalelection.Wis.Stat.§8.25(1).There

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And JudgeLudwigalso explainedexplicitlywhy the WEC actionsregardingabsenteeballotswere

consistentwith the enactmentsof theWisconsinLegislature:

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:

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 party is 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.”

“Theseissuesare ones the WisconsinLegislaturehas expresslyentrustedto the WEC.Wis.Stat.§5.05(2w)(“Theelectionscommissionhasthe responsibilityfor theadministrationofchs.5 to 10and 12.”).When the legislaturecreatedtheWEC, it authorizedthe commission

to issueguidanceto help electionofficialsstatewideinterprettheWisconsinelectionstatutesand newbindingcourt decisions.Wis. Stat.§5.05(5t).The WEC is also expresslyauthorizedto issue advisoryopinions,Wis.Stat.§5.05(6a),and to “[p]romulgaterules …applicableto all jurisdictionsfor thepurposeof interpretingor implementingthe lawsregulatingthe conductof electionsor electioncampaigns.”Wis.Stat.§5.05(1)(f).The

WisconsinLegislaturealso directedthat the WEC would have“responsibilityfor theadministrationof … laws relatingto electionsand electioncampaigns.”Wis.Stat.§5.05(1).Insum, far from defyingthewill of theWisconsinLegislaturein issuingthechallengedguidance,the WEC was in fact actingpursuantto the legislature’sexpressdirectives.…Thus,the guidancethatplaintiffclaimsconstitutesan unconstitutionaldeviationfrom the

WisconsinLegislature’sdirection,is, to thecontrary,the direct consequenceof legislature’sexpresscommand. And,defendantshaveactedconsistentwith the “Manner”of electionadministrationprescribedby 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.”

“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.”

“Inhis 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

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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 statecourt trial

judge conducted a hearing and then on December 11,2020 entered findingsagainst the President. The

matter then 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

heavilydemocraticcountiesselectedby the President’scounsel. The casedid not address similar issues

state-wide,or in other countieswithvote totals predominantlyfavoringthe President. Oneissuerelated

to a county determinationthat, pursuant to 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:

Next,the Courtdeclinedto addressthemeritsof other claims,explainingthat the doctrineof

“laches”applied:

Commissiontookhere,it tookundercolorofauthorityexpresslygrantedto it by the

Legislature.”

B. PrincipalCaseinStateCourt

“Although the numberof individualsclaimingindefinitelyconfined statushas 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 strike indefinitelyconfined 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.”

“Suchdoctrineis appliedbecausethe efficientuse of public resourcesdemandsthat acourt not allowpersonsto gambleon theoutcomeof an electioncontestand then

challengeit when dissatisfiedwith the results,especiallywhenthesame challengecouldhavebeenmadebeforethe public is put throughthe time and expenseof the entireelectionprocess.Thusif a partyseekingextraordinaryrelief in an election-relatedmatterfails to exercisethe requisitediligence,lacheswill bar the action. … Althoughit disagreesthe elementswere satisfiedhere,theCampaigndoesnotdispute the propositionthat

lachesmaybar an untimelyelectionchallenge.This principleappearsto be recognizedandapplieduniversally.… Therelevantelectionofficials,as wellas Vice PresidentBidenandSenatorHarris,hadno knowledgea claim to thesebroadcategoriesof challengeswouldoccur.The Campaign'sdelay in raisingtheseissueswas unreasonablein the extreme,andthe resultingprejudiceto the electionofficials,other candidates,votersof the affected

counties,and to votersstatewide,isobviousand immense.”

Addressingthe “Democracyin the Park”eventsspecifically,the majorityexplained:

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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:

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.

“Whenthe eventswereannounced,an attorney for the WisconsinLegislaturesent a

warning letter to the Cityof Madisonsuggestingthe eventswere illegal.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"eventswere illegallycast. Once again,when the events were

announced,the Campaigncould have challengedits legality.It did not.”

The Majorityconcluded:

“Our lawsallow the challenge flag to bethrown regardingvariousaspectsof election

administration.The challengesraised by the Campaign in this case, however,comelong

after the last play or even the last game; the Campaign is 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 iswithout 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 countrybelievethat fraud took placein Wisconsin duringthe November

3,2020 election.Nothingcould be further from the truth.The President failed to point to

even one vote cast in this election by an ineligiblevoter; yet he asks this court to

disenfranchiseover 220,000 voters. The circuit court,whose decision we affirm, found no

evidence of any fraud.”

“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. It is our

solemn judicial duty to say what the law is. The majority's failure to discharge its duty

perpetuatesviolations of the law by those entrusted to administer it. I dissent.”

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