Part 1 of 2
79 Days to Inauguration Taskforce Report: A Project of the Claremont Institute and the Texas Public Policy Foundationby Claremont Institute and Texas Public Policy Foundation
November 4, 2020
Highlights:Purportedly aiming to make sense of this fraught election year, in early August, the Transition Integrity Project (TIP) released a report suggesting that President Donald Trump would not likely leave office without an unprecedented struggle. The TIP, a self-proclaimed “bipartisan” group of some 100 people, was entirely composed of those utterly opposed to President Trump.
Their purpose wasn’t so much gaming out plausible post-election scenarios as much as it was to generate breathless propaganda suggesting that no matter the outcome, President Trump would refuse to leave the White House on Jan. 20, 2021, Inauguration Day.TIP’s effort marks a lost opportunity, one that the Claremont Institute in partnership with the Texas Public Policy Foundation (TPPF), sought to remedy with their own simulation of election night and what might be a highly charged and competitive aftermath—a contest after the contest....
The TIP effort appears to have labored under a serious Mirror-Image Fallacy in that it assumed that Republicans under President Trump would routinely violate the law to win, threaten mass demonstrations in the streets, seize the assets of political opponents, and start a conflict overseas to divert attention from the highly-contested post-election period.
In contrast, the Claremont-TPPF simulation featured vigorous use of the courts by both sides, with the Biden team seeking to negate state election law to maximize the counting of late or flawed mail-in ballots while the Trump team sought to have state election law followed... our simulation also featured the Biden team calling protesters to the streets.... The team foresaw four significant post-election eventualities: widespread urban unrest; state and federal litigation; brazen media and social media narrative shaping (detailed in Appendix C); and foreign interference and adventurism. The first two issues are detailed in the appendices.
State and local public safety authorities should be prepared for destructive urban unrest as well as communications difficulty due to interference with or overload of systems, such as the 9-1-1 system. Potential targets include ballot counting facilities, government buildings, especially state capitols and city halls, as well as television and radio studios. At the same time, prudent steps are likely to be spun as preparations for a military takeover or coup and may result in negative consequences either way.
-- 79 Days to Inauguration Taskforce Report: A Project of the Claremont Institute and the Texas Public Policy Foundation, by Claremont Institute and Texas Public Policy Foundation
Executive SummaryThere is no shortage of polls or pundits offering predictions on the outcome of the 2020 Presidential election. But “outcomes” include more than simply election results; who is gaming out how America—and the world—will respond? We are.
While national polls suggest an edge for Vice President Joe Biden, the winner isn’t determined by national polls—it is determined by who wins the Electoral College. Victory is won in the states.
Due to the political stoking of fears of contracting COVID-19, a massive push has been made, mostly by the left, to encourage voting by mail. This significantly alters the calculus on Election Day and completely upends the post-election period.
Most states and local election officials aren’t prepared to process, validate, and count large number of mail-in ballots. In five swing states (totaling 68 Electoral College votes)—Georgia, Iowa, Michigan, Pennsylvania, and Wisconsin—no mail-in ballots may be counted before Election Day (Nevada’s legislature changed election law to allow early mail-in ballot counting in August).
Since reports indicate a far greater interest in voting by mail for Democrats than Republicans, it’s likely that President Trump will be winning these states by large margins on Election Day, only to see that margin shrink in the days and weeks after Election Day.Further, voting by mail doesn’t result in the same success rate as does voting in person. The Washington Post reported that some 534,000 ballots were rejected during the 2020 primaries, either because they arrived late, the voter’s signature appeared invalid, or other failures. A separate analysis published in the Post found that as many as 4.9% of mail-in ballots fail to result in a counted vote. Depending on the state and the share of the vote by mail for each major party, the 1 in 20 ballots that fail to convert into a vote could be determinative.
Adding uncertainty to what is a routine exercise in vote counting (the 2000 contest in Florida being an exception) is this year’s urban unrest.
An election night featuring competing claims of victory, confusion, and early calls by the media, only to be reversed on the receipt of newer data, may lead to post-election violence unlike that seen in more than 150 years.THE WINNER WILL NOT BE KNOWN ON ELECTION NIGHT DUE TO MILLIONS OF UNCOUNTED MAIL-IN BALLOTS IN 5 BATTLEGROUND STATES
• THE POST-ELECTION PERIOD WILL LIKELY SEE A TRUMP LEAD STEADILY ERODED BY MAIL-IN BALLOT COUNTING
• LAWSUITS WILL BE FILED IN MANY STATES, WITH REPUBLICANS SEEKING TO UPHOLD STATE LAW AND DEMOCRATS SEEKING RELIEF FROM STATE LAW
• THE U.S. CONSTITUTION IS REMARKABLY RESILIENT IN CHALLENGING TIMES AND THE AMERICAN PEOPLE SHOULD GIVE IT TIME TO WORK
• SHOULD THE ELECTORAL COLLEGE NOT PRODUCE A WINNER, THERE ARE TWO ISSUES OF CONCERN: THE ABILITY OF THE HOUSE MAJORITY TO DENY THE SEATING OF NEWLY ELECTED MEMBERS AND HOW LONG THE SPEAKER MIGHT SERVE AS TEMPORARY PRESIDENT UNDER THE SUCCESSION ACT
• MAJOR MEDIA AND INTERNET GIANTS WILL ACTIVELY SEEK TO SHAPE THE POST-ELECTION NARRATIVE, SUPPRESSING INFORMATION OF WHICH THEY DON’T APPROVE
• THERE IS AN INCREASED CHANCE OF URBAN UNREST, ESPECIALLY IN JURISDICTIONS WHERE LOCAL AND STATE OFFICIALS ARE RELUCTANT TO MAINTAIN ORDER
• CHINA AND RUSSIA MAY TRY TO INCITE VIOLENCE
• THERE IS A GREATER LIKELIHOOD OF OVERSEAS CONFLICT INITIATED BY POWERS THAT MISUNDERSTAND THAT AMERICA HAS ONE PRESIDENT AT A TIME
Purportedly aiming to make sense of this fraught election year, in early August,
the Transition Integrity Project (TIP) released a report suggesting that President Donald Trump would not likely leave office without an unprecedented struggle. The TIP, a self-proclaimed “bipartisan” group of some 100 people, was entirely composed of those utterly opposed to President Trump. Their purpose wasn’t so much gaming out plausible post-election scenarios as much as it was to generate breathless propaganda suggesting that no matter the outcome, President Trump would refuse to leave the White House on Jan. 20, 2021, Inauguration Day.TIP’s effort marks a lost opportunity, one that
the Claremont Institute in partnership with the Texas Public Policy Foundation (TPPF), sought to remedy with their own simulation of election night and what might be a highly charged and competitive aftermath—a contest after the contest.For the task, Claremont and TPPF assembled a taskforce of 35 people, and over the course of seven days, these Constitutional scholars, along with experts in election law, foreign affairs, law enforcement, and media, made decisions as to how they would react to fast-moving events. The entire operation was coordinated by a retired military officer experienced in running hundreds of wargames.
The Claremont-TPPF effort produced a detailed roadmap of the likely challenges at the state level, how those might be adjudicated in the state and federal court, how domestic unrest and foreign adventurism might intensify, and, in the unlikely event that the Electoral College cannot determine a winner, how a President and Vice President could be constitutionally determined.The team foresees three basic scenarios, one of which was gamed out in detail:
• A clear victory for President Trump, winning 32 states and 322 Electoral College votes, better than the 304 Trump won in 2016, but, due to the massive use of mail-in ballots, especially in the five states in which counting cannot commence until Election Day, victory likely won’t be formally declared until days or weeks after election day as Trump would only have 248 Electoral votes known for certain.
• A clear victory for Vice President Biden, winning 26 states and D.C. for a total of 342 Electoral College votes. Again, because of the six states that cannot count mail-in ballots until Election Day, even in this scenario, victory won’t be known for certain as Biden may only have 268 Electoral votes late into election night.
• An ambiguous result, with several states’ final election results delayed and subject to intense court fights resulting in a struggle right up to the Jan. 6 joint session of Congress where the Electors’ ballots are unsealed. Uncertainty could extend even beyond this as decisions for both the presidency and vice presidency are battled out in Congress and before the U.S. Supreme Court.
It is this last scenario that the team simulated in detail. The key takeaways from the effort included:
• Regardless of the outcome, the winner isn’t likely to be known on election night.
• The large number of mail-in ballots may prove hard to validate in many states, as systems have not been prepared to process the ballots and count them while tremendous pressure will be brought to bear to bypass safeguards against fraud and produce results.
• When employed, the legal system will be up to the task of adjudicating disputes over election results.
•
There is a significant chance for unrest, stoked by a major media in which the American people have lost trust, by domestic opponents to America’s Constitutional system, and by foreign powers, mainly the People’s Republic of China (PRC) and Russia. Further, major media and the internet giants (Facebook, Twitter, Google) will actively shape and suppress news.• There is a heighted danger of international adventurism by the PRC and Russia, the leaders of which, misperceiving the nature of American governance, may think that the post-election uncertainty gives them leave and opportunity for military action.
• If the contest doesn’t produce a majority (50% +1) of the votes of seated Electors by Jan. 6, there are clearly established Constitutional procedures to determine a victor.
• There are two areas of uncertainty at the late stage of a contested election:
o Each house determines the final election results of its membership. This means that the Democratic majority in the U.S. House might decide not to seat duly elected Republican Members so as to prevent the Republicans from holding a 26-seat majority in the state delegations in the event that state delegations, each with one vote per state, are used to determine the President in the event that no candidate has the needed absolute majority of seated Electors’ votes. Given that the majority’s power to determine the membership of the body, House or Senate, is absolute, the sole check on the use of this absolute political power is the potentially dire consequences of its abuse.
o Should the results be undetermined through Jan. 20, Inauguration Day, the Succession Act would suggest that the Speaker of the House would become President. Should the results be undetermined through Jan. 20, Inauguration Day, the Succession Act would suggest that the Speaker of the House would become acting President until one is determined and, if the House cannot decide, then elevating the Vice President, even if selected out of the Senate.Comparing the TIP wargame to the Claremont-TPPF simulationIn August, the Transition Integrity Project (TIP) issued a report regarding the “results” of its “wargame” conducted over the summer. The “wargame” was conducted by about 100 Democrats and so-called “Never-Trump” Republicans, allowing it to be characterized as “non-partisan.”
TIP’s four scenarios were:
• Ambiguous. The first game investigated a scenario in which the outcome of the election remained unclear from election night and throughout gameplay. The results from three states are in contention and ballots are destroyed in one of the states, making it unclear who should have won that state. Neither campaign is willing to concede.
• Clear Biden Victory. Biden wins both the Electoral College and the popular vote. Trump alleges fraud and takes steps to benefit himself and his family but ultimately hands the White House over to Biden.
• Clear Trump Win. The third scenario started with an Electoral College victory for President Trump (286 to 252), but a popular vote win (52% to 47%) for former Vice President Biden. In this scenario Biden refused to concede, convinced the Democratic governors of two states that Trump won to send separate slates of electors to the Electoral College, encouraged three states to threaten secession and convinced the House of Representatives to refuse to certify the election and declare Biden the victor.
• Narrow Biden Win. The final scenario explored a narrow Biden win where he leads with less than 1% of the popular vote and has a slim lead at 278 electoral votes. The Trump campaign sows chaos but Senate Republicans and the Joint Chiefs of Staff eventually signal that they accept Biden's win. Trump refuses to leave and is removed by the Secret Service.
In response to TIP’s 2020 election wargaming, the Claremont Institute and the Texas Public Policy Foundation brought together 35 Constitutional, legal, political, foreign affairs, and law enforcement experts to simulate the post-election period, carrying the contest to the furthest Constitutional endpoint.
The TIP effort appears to have labored under a serious Mirror-Image Fallacy in that it assumed that Republicans under President Trump would routinely violate the law to win, threaten mass demonstrations in the streets, seize the assets of political opponents, and start a conflict overseas to divert attention from the highly-contested post-election period.
In contrast, the Claremont-TPPF simulation featured vigorous use of the courts by both sides, with the Biden team seeking to negate state election law to maximize the counting of late or flawed mail-in ballots while the Trump team sought to have state election law followed. As with the TIP wargame, our simulation also featured the Biden team calling protesters to the streets. The TIP effort hinted at how this might get out of hand, noting on page 9 of their report,During TIP’s exercises, Team Biden almost always called for and relied on mass protests… participants in the exercise noted that racial justice activists and others will likely act independently of the Biden campaign…
This is TIP’s candid admission of the high likelihood of Team Biden encouraging street demonstrations that might spiral out of control. The Claremont-TPPF team simulation also saw this left-wing street violence as a near-certainty. Instructively, the TIP organizers urged Democrats to coordinate with the leadership of “recent demonstrations”—presumably, Black Lives Matter and Antifa—while meeting their demands (Reparations? Defund the Police?), writing,
If anything, the scale of recent demonstrations has increased the stakes for the Democratic Party to build strong ties with grassroots organizations and be responsive to the movement’s demands.
Lastly, there are two areas where the TIP team admits they didn’t do a lot of work,
Two words of caution about the findings from the exercises. First, TIP intentionally did not game legal strategies in any detail… One question is whether a candidate is able to convince the state legislature to send a package of electoral college votes inconsistent with the certified popular vote. Even if a court disapproved of this action, Congress might nonetheless consider those votes on January 6. Second, the exercises were not able to fully capture the ways in which the media will shape and drive public opinion, or how specific media outlets would cover events differently and drive increasingly partisan responses. Social media in particular will undoubtedly play a heavy role in how the public perceives the outcome of the election. Political operatives, both domestic and foreign, will very likely attempt to use social media to sow discord and even move people to violence. Social media companies’ policy and enforcement decisions will be consequential, and this merits further exploration and consideration.
Claremont and TPPF recruited players to simulate state and federal courts, including the U.S. Supreme Court, as well as major media outlets and social media firms. This is a significant portion of our output.
Unlike TIP’s effort, which appeared aimed more at generating headlines unfavorable to President Trump, the Claremont-TPPF effort had as its objective conducting a full simulation of an ambiguous election outcome having a three-fold intent:
1. Document the Constitutional, legal, and precedent-shaping history to support what might happen and actions the players on all sides may take.
2. Prepare key officials and supporters for the coming crisis.
3. Prepare the public and key institutions to recognize the post-Election landscape to reduce hype and fear and instill confidence in Constitutional mechanisms.
As such, unlike the TIP effort, the Claremont-TPPF exercise includes footnotes linking to online sources for important Constitutional, legal, or historical matters.
The Claremont-TPPF simulationFor a simulation to be valuable, the other side gets a vote and actions must be based in realism.
The Claremont-TPPF simulation used an iterative process running over the course of six days to simulate the days and weeks after Election Day.
Chuck DeVore, vice president of National Initiatives for TPPF designed and led the simulation. As a U.S. Army lieutenant colonel intelligence officer, now in the retired reserve, and a Reagan-era special assistant for foreign affairs in the Pentagon, DeVore has created, run, or participated in hundreds of wargames, including those which resulted in military action.Our effort employed some 35 players representing key people or entities such as: President Trump, Vice President Pence, Vice President Biden, Senate Majority Leader McConnell, Speaker Pelosi, the U.S. Supreme Court, various U.S. Circuit courts, state supreme courts, state governors and legislatures, major media groupings, internet companies, law enforcement, the intelligence community, street protesters, the People’s Republic of China, Russia, and others.
The simulation started on Election Night and proceeded with one turn every day. If a player wanted to coordinate an action, they were encouraged to do so, so long as it would be realistic in real life. Intended actions did not always result in exactly what the players wished as those actions could themselves be acted upon by other players or by friction—understood by Karl von Clausewitz as “the concept that differentiates actual war from war on paper.”
The turns represented the following timeline:
1. Election Night and the following day
2. Nov. 4-5, counting the votes and legal challenges
3. Nov. 6-12, intensifying legal challenges over disputed ballots
4. Nov. 13-Dec. 3, certifying the election results and seating the Electors
5. Dec. 4-Jan. 6, Electors vote and the joint session of Congress
6. Jan. 7-Jan. 20, Inauguration Day
All participants were given the following as the starting scenario.
Election Night, Nov. 3.Former Vice President Joe Biden is declared the winner by all major networks by 11:05pm Eastern with 280 Electoral College votes as polls close on the West Coast. Biden leads in the popular vote with 49% to President Trump’s 47.5% with minor candidates netting 1.5%. Pressure builds on President Trump to accept the results and concede. (Map by Real Clear Politics.)
At 11:12pm, reports out of Texas indicate that the internet communication of county results to the Secretary of State’s central tabulation was hacked. All county results are correct, though many counties had their election reporting webpages disrupted by denial of service attacks. County election officials, alarmed at the attack, call the Secretary of State and alert the official to the actual results.
By 11:35pm, Texas is moved from a Biden upset to too close to call. No candidate has the needed 270 Electoral College votes to be declared a winner, with the margin of Election Day votes in four states, Florida, Michigan, Pennsylvania, and Texas smaller than the number of outstanding mail-in and provisional ballots, though Trump leads in all four states.
Riots break out in more than a dozen major cities, including Seattle, San Francisco, Sacramento, Los Angeles, Chicago, Detroit, St. Louis, Houston, Louisville, Miami, Philadelphia, New York, and Boston.
14 law enforcement officers are known to have been shot, with one confirmed death. There are unconfirmed reports of a car bombing of a police precinct building in Philadelphia.Biden must win either Texas or Florida or Michigan and Pennsylvania to win. Trump must win Florida and Texas and either Michigan or Pennsylvania to win using the Electoral College.
Wednesday morning.
Foreign actors are now suspected of being behind the confusion out of Texas.From that beginning on Monday morning, the team worked through Saturday, making decisions on the following major milestones:
• On election night,
Texas is called for Biden early as a surprise upset, only to discover minutes later that hacking (from foreign powers as is determined the following morning) caused the results to be improperly reported at the state level (the county counts being accurate). This put the race back into undecided status with Florida, Michigan, Pennsylvania, and Texas too close to call—a condition further compounded by the large number of uncounted mail-in ballots in Michigan and Pennsylvania. (In reality, we may see that in Georgia, Iowa, and Wisconsin as well due to state law preventing the counting of mail-in ballots before Election Day.)
• The early calling of the race for Biden followed by the change back to undecided served as a catalyst for urban unrest. This unrest was stoked by foreign powers, especially China and Russia. It was further complicated by local politicians unwilling to vigorously restore order.
• As the lawsuits and court cases stacked up and were resolved, eventually Texas and Florida were called for Trump, about a week after the election with Pennsylvania following shortly after for Biden, leaving the Electoral College count at 262 Biden, 260 Trump.
• With America fully occupied with the most-contested post-election period since 1876, the PRC took the initiative to amplify their genocide against the Uyghurs while increasing pressure on Taiwan. Russia made a move on Belarus, seized the Suwalki Corridor, and sent unconventional forces into Estonia and Latvia (the “Little Green Men”). These actions were not without consequences as the U.S. retaliated with offensive cyber operations on both nations, causing economic damage.• The contest came down to Michigan, where Trump was leading by a few hundred votes when
a fire of unknown origin destroyed thousands of uncounted mail-in ballots in Detroit. Michigan’s Secretary of State refused to certify the election.• The Michigan Legislature failed to provide clarity as, though the Republicans controlled the State Senate, the State House was deadlocked 55-55.
Michigan’s 16 Electors were not seated.• At this point, sometime around December 8, Republicans sought legal remedies to force the seating of Michigan’s Electors.
• The Republican efforts fail to seat Michigan’s Electors, leaving the final count 262 to 260. The Constitution doesn’t require 270 (a majority of 538), rather, it requires a majority of the seated Electors, meaning Biden/Harris would win at this point—assuming there were no faithless electors (in 2016, there were seven).
•
Republicans hear of the Speaker’s plan to deny the seating of key Republican Members in certain closely-contested races (each house is the judge of their own elections) to shift the state delegation count from a 26 Republican majority, 22 Democrat and two tied, to a majority of 26 for the Democrats, or, failing that, something less than 26 for the Republicans. The Speaker’s intent is to become President herself on January 20. In response, Republicans conduct a major nationwide poll on what the public would think about such a radical power grab and massively publicize it. (The rationale here is that, like impeachment, such acts are political acts, and, as such, incur political consequences.) Public opinion turns massively against the power grab and the Speaker publicly backs off, likely anticipating a victory anyway on a 262 to 260 vote of the Electors.
• As Congress assembles to unseal the Electors’ ballots, there are two faithless electors from states without laws preventing such electors from voting in line with the state’s vote. The count is 261 Biden, 260 Trump, 1 Sanders. Per the Constitution, a majority of the seated Electors’ votes is needed to win, meaning 50% +1. The vote for President moves to the House for a vote by state delegation, with the top three candidates on the first ballot. The vote for Vice President was 261 to 261, one faithless elector voting for Biden and Pence. The vote for Vice President moves to the Senate.
• In the House, the Speaker considers not calling the House to prevent the vote, but the President calls the House into session.
• Over in the Senate, a 2/3rds quorum is needed to start the process of selecting the Vice President. The Democrats walk out and the Vice President orders the Sergeant-at-Arms to arrest the Members and bring them to the chamber. A quorum is established, but two members of the majority vote for the Democrat, leading to a 50-50 tie. The Vice President breaks the tie by casting the deciding vote for himself.
• As the House is returning to session to vote by state delegation, there is a massive and violent Antifa demonstration in D.C. In the confusion, a Republican member from an at-large delegation is attacked and sent to the hospital with life-threatening wounds. With only 25 state delegations in control, it looks like the Speaker might become temporary President on January 20 per the Succession Act pending the elevation of the Vice President or unless the House comes to agreement. The critically injured Member of Congress, however, understanding what is at stake, demands to be transported to the House for the state delegation vote and arrives in a heavily guarded convoy. With IVs and blood transfusions being administered, the Member from (AK, MT, ND, SD, or WY) casts the deciding vote, giving Trump 26 state delegations and the needed majority.The team responded as events unfolded, deploying tactics such as press conferences, leaks, calls for demonstrations (with the urban unrest in Appendix B), and lawsuits with the latter generating a significant body of legal scholarship (seen in Appendix A).
Foreign powers took advantage of the mounting confusion in America by stoking violence and increasing military activities on their borders.The media and internet firms vigorously censored stories unfavorable to the Biden/Harris team, for instance, not reporting allegations of election fraud and shutting down any discussion along those lines. This effort was pervasive and aggressive, forcing the public to find alternative means of collecting and sharing information.RecommendationsThe team foresaw four significant post-election eventualities: widespread urban unrest; state and federal litigation; brazen media and social media narrative shaping (detailed in Appendix C); and foreign interference and adventurism. The first two issues are detailed in the appendices.
State and local public safety authorities should be prepared for destructive urban unrest as well as communications difficulty due to interference with or overload of systems, such as the 9-1-1 system. Potential targets include ballot counting facilities, government buildings, especially state capitols and city halls, as well as television and radio studios. At the same time, prudent steps are likely to be spun as preparations for a military takeover or coup and may result in negative consequences either way.Legal arguments need to be anticipated and prepared now, during the relative calm of the pre-election environment.
Methods of bypassing the major media while breaking through social media censorship need to be planned. (The simulation was run a week before Facebook and Twitter censored the New York Post series on Hunter Biden, predicting the behaviors seen by the internet giants during the week of October 12). For instance, campaigns and parties might encourage their supporters to sign up for email updates or to check in with specific websites (the establishment of backup servers would be prudent as well). Talk radio may also be a good source of news that may be difficult to embargo.
The likelihood of foreign intervention and military adventurism might be diminished by keeping the Secretaries of Defense and State focused on projecting the message that America only has one chief executive at a time and that the U.S. is more than capable of defending its interests during even a contentious and uncertain post-election period.
ConclusionsAmerica already has a well-established “transition integrity” procedure—the Constitution.
It is the participants’ earnest desire that this scholarship will illuminate the path for both state elected officials and local election officials as they struggle through what may likely be the most difficult period of their professional careers.
Furthermore, we hope that our work will reassure the American people that our system of government is resilient—having been crafted by the Founders to withstand crises and to emerge through the turmoil with a government of the people, by the people, for the people, that shall not perish from the earth, but endure to secure the Blessings of Liberty to ourselves and our children.
Ryan Williams, President, Claremont Institute
Chuck DeVore, Vice President, TPPF, former California State Assemblyman, (simulation designer and umpire)
John Eastman, Senior Fellow of the Claremont Institute
Jeff Giesea, entrepreneur, communications strategist
Charles Haywood
Jason Isaac, Director, Director of Life: Powered, TPPF, former Texas State Representative
Brian T. Kennedy, President, The American Strategy Group
KT McFarland, former Deputy National Security Advisor
Roy Maynard, Senior Writer, TPPF
Kevin Roberts, Executive Director, Texas Public Policy Foundation
Chelsea Murphy, Florida State Director for the Right on Crime Initiative, TPPF
Jeff Nyquist
Ky Olbert, Independent Researcher
Gladden Pappin, Department of Politics, University of Dallas and Deputy Editor, American Affairs
Randy Petersen, Senior Researcher, TPPF
James Quintero, Director, Center for Local Governance, TPPF
Kyle Shideler, Director/Senior Analyst for Homeland Security and Counterterrorism, Center for Security Policy
Ron Simmons, Distinguished Senior Fellow, TPPF, former Texas State Representative
APPENDIX A – Lawsuits and Court Decisions
FLORIDA
The Biden campaign and the DNC filesFL state law prohibiting the counting of ballots received after polls closed is an unconstitutional deprivation of the fundamental right to vote under the Voting Rights Act and the 14th Amendment. Florida law, while questionable in normal times, is unconstitutionally restrictive during a pandemic, when many—especially the disabled and minorities—voters are less able to obtain or renew valid ID in a timely manner and are thus less able to fulfill the official requirements for mail-in voting.
Florida Supreme Court RulingThis Court (the Supreme Court of Florida) has been made aware that a lawsuit was filed earlier today in the 17th Circuit Court (Broward County) by attorneys for the Biden for President campaign, alleging that the requirement in Florida law, Fl. St. § 101.67 that absentee ballots must be received by the supervisor of elections of the county of the voter's residence by 7:00 p.m. on Election Day deprives voters of the fundamental right to vote in violation of the federal Voting Rights Act and the 14th Amendment. Given the time sensitivity of this challenge, and the fact that the complaint raises a matter of pure law, we are directing the Circuit Court to transfer the case to this Court in the exercise of our original jurisdiction, pursuant to Rule 9.030(a)(3) of the Florida Rules of Court. The Secretary of State, as the Chief Elections Office of Florida, is directed to file an answer to the complaint, together with any supporting memorandum of legal points and authorities, by Noon tomorrow (Wednesday, Oct. 6, simulated time). The Clerk of Court is directed to give notice of this Order to the Circuit Court, the attorneys for Plaintiff, and the Secretary of State of Florida forthwith.
Biden for President 2020, Plaintiff, v. Laurel M. Lee, in her official capacity as Secretary of State of Florida, Defendant.
Florida Supreme Court RulingThe Court (the Supreme Court of Florida) rejects the Biden campaign's challenge to the absentee ballot requirements of Fl. St. Sec. 101.67. Voting is one of the foremost rights protected by the Fl. constitution. The Fl. legislature is duly authorized to establish rules and regulations for the fair and efficient administration of elections, and this for two reasons. First, the very nature of an election is to have a defined point at which the receipt of ballots is complete and a victor is declared. Plaintiffs urge no reason to believe that the 7pm election-day deadline deprives voters of their rights anymore than a statutory deadline of a week before or a week after the election. The legislature has determined that requiring the receipt of ballots by the evening of election day secures an efficient resolution to the election process. The court will not second guess that decision. Second, ballot requirements are designed to prevent fraud and other misconduct that would taint the fairness and integrity of the election and cast doubt upon the validity of the results. Taylor v. Martin Cnty. Canvassing Brd., No. SC00-2448 (Fl. S.C., December 2000). These lofty goals permit the Fl. legislature to proscribe rules protecting the sanctity of the ballot box, and the court will not rewrite those statutory protections from the bench. This state's experience in the primary elections a few months ago demonstrates that only a small percentage of mailed ballots were not counted due to late return. Of those, it is unclear whether the ballots were even postmarked by the time they should have been received, illustrating one of the many, many problems with extending the deadline for absentee voting. Although "technical statutory requirements must not be exalted over this right" to vote, in the absence of fraud or evidence of intentional malfeasance by the legislature, this Court will not interfere with the election procedures. Palm Beach Canvassing Board v. Harris, No. SC00-2346 (Fl. S.C., December 2000). As this Court has previously expressed, "absent an assertion that there has been substantial noncompliance with the law, [We] do not believe that the possibility of affecting the outcome of the election is enough to justify ignoring the statutory deadline." Id.
MICHIGAN
The Biden campaign and the DNC filesMichigan state law requiring a valid postmark on mail-in ballots, while normally valid, is unconstitutional in light of the unprecedented lengths to which the Trump administration has gone to under-fund, under-resource, and generally manipulate the Postal Service's ability to process and distribute mail. All mail-in ballots that arrive within two weeks of election day, regardless of postmark, must be counted.
U.S. Court of Appeals for the Sixth Circuit RulingThis Court (the U.S. Court of Appeals for the Sixth Circuit) has been made aware that a lawsuit was filed earlier today in the U.S. District Court for the Western District of Michigan (Lansing Division) by attorneys for the Biden for President campaign, alleging that the requirement in the Michigan Constitution that absentee ballots must be postmarked on or before election day to be counted is unconstitutional in light of the Trump administration's alleged efforts to "under-fund, under-resource, and generally manipulate the Postal Services ability to process and distribute mail." From the report we have received, it appears that the district court issued a writ of mandamus ordering county clerks to count all mail-in ballots that arrive within two weeks of election day, regardless of postmark. Anticipating an appeal from the Michigan Secretary of State and/or attorneys for the Trump 2020 Re-Election Campaign, and given the extreme time sensitivity involved in this matter, we hereby assert jurisdiction over the pending appeal, and reverse the judgement of the lower court, which is patently contrary to the further requirement in Michigan law, MI. St. § 168.764a, that absentee ballots must be received by the county clerk of the county of the voter's residence before the close of polls on Election Day to be counted, a statute that was just upheld this past summer by the Michigan Court of Appeals against a constitutional challenge. See League of Women Voters of Michigan v. Sec'y of State, No. 353654, 2020 WL 3980216 (Mich. Ct. App. July 14, 2020), appeal denied, 946 N.W.2d 307 (Mich. 2020), reconsideration denied, 948 N.W.2d 70 (Mich. 2020). County Clerks are directed to count only those absentee ballots that were received in their office before the close of polls at 8:00 p.m. Eastern time on election day.
U.S. Court of Appeals for the Sixth Circuit RulingCase No. 20-1001
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPUBLICAN PARTY OF MICHIGAN, Plaintiff-Appellant
v.
JOCELYN BENSON, SECRETARY OF STATE OF MICHIGAN, Defendant-Appellee
On Appeal from the United States District Court for the Eastern District of Michigan
FILED November 6, 2020
BEFORE: SUTTON, THAPAR, and LARSEN, Circuit Judges
Michigan law, MI. St. § 168.764a, quite clearly requires that, in order to be counted, vote-by-mail ballots must be “received” by the county clerk before the close of polls on election day, which this year was 8:00 p.m. on Tuesday, November 3. That law was upheld by the Michigan Court of Appeals as recently as July, in a decision that the Michigan Supreme Court twice declined to review. League of Women Voters of Michigan v. Sec'y of State, No. 353654, 2020 WL 3980216 (Mich. Ct. App. July 14, 2020), appeal denied, 946 N.W.2d 307 (Mich. 2020), reconsideration denied, 948 N.W.2d 70 (Mich. 2020). It was relied on by this Court only two days ago when we reversed a decision by the District Court for the Western District of Michigan ordering, at the request of the Biden for President Campaign Committee, that county clerks accept and count ballots received up to two weeks after election day, regardless of postmark. In that decision, we ordered County Clerks to count only those absentee ballots that were received in their office before the close of polls at 8:00 p.m. Eastern time on election day. Our ruling became final later that same day, when an emergency petition for writ of certiorari was denied by the Supreme Court of the United States.
Nevertheless, based on a decision last month by a state inferior court judge in the Michigan Court of Claims that ordered county clerks to accept and count ballots received up to two weeks after election day—in a case that has all the hallmarks of being a collusive suit, brought by the Michigan Alliance for Retired Americans (a group closely aligned with the Michigan Democrat Party) against the Michigan Secretary of State (also a Democrat), who did not oppose MARA’s request for an injunction, which was granted by the Court of Claims Judge (a recent appointee of Democrat Governor Gretchen Whitmer), and which the Michigan Attorney General (also a Democrat) declined to appeal—county clerks have been counting said ballots, in direct violation of our order. The argument put forward to the Court of Claims and accepted by that Court is that neither our order nor the July ruling by the Michigan Court of Appeals took account of the fact that the U.S. Postal Service was indicated that it could not guarantee the timely delivery of vote-by-mail ballots. The “evidence” in support of that claim appears to have been manufactured to create the plausible ground for the collusive suit, by a long-time career employee of the Postal Service (also a Democrat) who, in his capacity as General Counsel of the Service, sent a letter to the Democrat leadership of the Senate (and only the Democrat leadership) complaining that changes proposed by the recently-appointed head of the postal service would cause delays in postal delivery. Those claims were disavowed in sworn testimony before the Senate by the head of the agency, but the General Counsel then, on his own initiative, sent letters to several state Secretaries of State repeating the charges he had made in his initial letter. Copies of those letters were then provided to major media organizations, along with a picture of chained mailboxes (which, in fact, was a decade old, taken merely for nostalgic purposes to document that modern communications via the internet were making a lot of the postal system’s old post offices obsolete).
In response to this, the Republican Party of Michigan yesterday filed an emergency request for an injunction to prevent the counting of ballots received after election day, in violation of Michigan law. It argued that the Court of Claims order compelling the County Clerks to count said ballots violated the Equal Protection Clause of the 14th Amendment as well as the Republican Guaranty Clause of Article IV. The district court denied the injunction, and the Republican Party of Michigan filed an emergency appeal with his Court late last night.
We agree with the district court that the decision of the Court of Claims does not violate the Equal Protection Clause, because the order to count late-received ballots has equal application throughout the State. But we disagree with the district court’s holding that the Republican Guaranty Clause is not violated. That Clause, long thought to be non-justiciable, was revived by Justice O’Connor in New York v. United States, where she contended that it would be justiciable in the situation where state officials were ignoring the structural requirements of their own state law.
That has occurred here. The federal Constitution makes clear that the “Manner” for choosing electors shall be directed by the Legislature. U.S. Const. Art. II, § 1, cl. 2. The Michigan legislature as determine that vote-by-mail ballots must be received by the close of polls on election day. To allow a low-level court of claims judge, rather than the legislature itself, to alter that “manner” of election, with apparent complicity from the executive officials of the state, is to ignore those basic structural requirements.
We therefore grant the requested injunction. The county clerks are again ordered to county only ballots received in their office before 8:00 p.m. on election day, November 3. For any ballots received after that time and day that have already been counted, those ballots are to be removed from the final tally (to the extent possible). The decision below is REVERSED.
U.S. Court of Appeals for the Sixth Circuit RulingCase No. 20-1001
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPUBLICAN PARTY OF MICHIGAN, et al., Plaintiffs-Appellants
v.
GRETCHEN WHITMER, GOVERNOR OF THE STATE OF MICHIGAN; JOCELYN BENSON, SECRETARY OF STATE OF MICHIGAN; MICHIGAN BOARD OF STATE CANCASSERS, Defendants-Appellees
On Appeal from the United States District Court for the Western District of Michigan
FILED January 2, 2021
BEFORE: MOORE, STRANCH, and READLER, Circuit Judges
Due to the overwhelming number of vote-by-mail ballots that were submitted for the presidential election last November 3, and disputes over the validity of large number of those ballots, the Michigan Governor had not certified who had been elected as electors for the State prior to December 14, 2020—the date set by federal law for the casting of electoral votes, see 3 U.S.C. § 6. Indeed, the Governor has still not certified electors, yet the date set by federal law for the counting of electoral votes in a joint session of Congress, January 6, see 3 U.S.C. § 12, is hard upon us. Efforts by the Vice President of the United States, in his role as President of the Senate, to obtain a certification of electors from the Governor pursuant to authority granted to him by 3 U.S.C. § 7, have been unavailing, as the issue is not simply one of the Governor’s failure to transmit the certificate of the electors’ vote, but of the fact that the election of the electors has itself still not been determined.
The Republican Party of Michigan, joined by the Trump for President Re-Election Campaign Committee, the Vice President (in his role as President of the Senate), the President Pro-Tem of the Senate Charles Grassley, Senate Majority Leader Mitch McConnell, and House Minority Leader Kevin McCarthy, filed this action in the court below seeking injunctive relief compelling the Secretary of State to certify the election of electors in Michigan, based on the vote tally as it exists now. The district court denied the request for injunctive relief without opinion, and the plaintiffs have filed an emergency appeal with this Court, as they are entitled to do under 28 U.S.C. § 1292(a)(1).
The standards for injunctive relief are well-known, and given the time urgency of this appeal, we will not repeat them here. Suffice it to say, a key requirement is the likelihood of success on the merits, and for that, there has to be some legal duty with which plaintiffs are attempting to compel Michigan officials to comply. We find no such legal duty in Michigan law. Section 841 of Chapter 168 does provide that “The board of state canvassers shall canvass the returns and determine the result of all elections for electors of president and vice president of the United States,” MI ST § 168.841 (emphasis added), but there is no timetable specified in that statute by which that duty must be completed. Section 46 of Chapter 168 provides that the Governor “shall certify” the names of the electors chosen at the election, but only “[a]s soon as practicable after the state board of canvassers has, by the official canvass, ascertained the result of [the] election.” MI ST § 168.46. She can hardly certify which electors have been chosen when the board of canvassers has not yet ascertained the election results. Section 47 of that same chapter mandates that said electors “shall convene” on the date specified by Congress, MI ST § 16 8.47 (emphasis added), but until the results of the election have been ascertained by the board of canvassers and the electors “certified” by the Governor, there are no such electors against whom that mandate can run.
Neither do we find any such legal duty in federal statutes or the U.S. Constitution. What we do find is a presumption that electoral votes cast by the First Monday after the Second Wednesday in December following the election (which this year was December 14) are valid unless both houses of Congress agree that the votes of said electors were not “regularly given.” But the failure of Michigan to avail itself of that safe harbor, or indeed to appoint electors at all, is not enjoined by any law or constitutional requirement.
One might contend that by failing to certify electors, Michigan officials have deprived the voters of Michigan of their right to vote for President and Vice-President of the United States. But there is no such right. Rather, as the Constitution makes clear, “Each State shall appoint, in such Manner as the Legislature thereof may direct, [the] Number of Electors” to which it is entitled. U.S. Const. Art. II, § 1, cl. 2. The Legislature of Michigan could remove the choice of electors from the people altogether without giving rise to any constitutional violation. What we have here is a failure to choose electors at all, but that is a function of the manner that the Legislature of Michigan has crafted for its process. Whether that was wise or foolish, it is a matter that the Constitution of the United States leaves entirely in the hands of the Legislature. Not only is there no duty that we could enforce by an injunction, there is no justiciable question for us to consider at all. We therefore cannot even affirm the district court’s denial of an injunction, but must dismiss the appeal for lack of jurisdiction, and remand to the district court to dismiss the action there for lack of jurisdiction as well.
The appeal is DISMISSED and the matter is REMANDED to the district court to enter an order DISMISSING the action there as well, for lack of jurisdiction.
The Biden campaign and the DNC appeals the ruling to the U.S. Supreme CourtMI state law requiring a valid postmark on mail-in ballots, while normally valid, is unconstitutional in light of the unprecedented lengths to which the Trump administration has gone to under-fund, under-resource, and generally manipulate the Postal Service's ability to process and distribute mail. All mail-in ballots that arrive within two weeks of election day, regardless of postmark, must be counted.
