What happened to our Supreme Court? President Trump selected 3 Supreme Court Justices, so that should have given the conservatives a 5 to 4 lead in the Court. With the breakup being as follows:
Conservative Justices: Brett Kavanaugh
John Roberts Chief Justice leans a little left
Amy Coney Barrett
Liberal Justices: Stephen Breyer
So, even if john Roberts went left, that still leaves 5 conservative justices to 4 liberals. There should have been no question that there would be an interest to hear a case dealing with voter fraud. Yet so far only two justices have been in favor of hearing the case, and neither of these were justices chosen by President Trump. My task in this article is to try an figure what happened.
Donald Trump has expressed doubt that the US Supreme Court will hear his allegations of electoral fraud, as his hopes of overturning the 2020 election result through the courts dwindle. The president has continued to insist that the US presidential election was a “total fraud”, despite one court after another dismissing his campaign’s lawsuits. The latest blow came late on Saturday, when the Pennsylvania Supreme Court dismissed a Republican attempt to invalidate the state’s mail-in ballots. Mr Trump has vowed to take the case all the way to the US Supreme Court which, with three of his appointees, has a firm conservative majority. But the president sowed doubts about that strategy on Sunday. “The problem is it’s hard to get into the Supreme Court,” he told Fox’s Sunday Nov. 29th, 2020 Futures program. “I’ve got the best . . . lawyers that want to argue the case, if it gets there, but they said, it’s very hard to get a case up there.” Mr Trump has engaged in an unprecedented attempt to cling to power since the November 3 election, filing several lawsuits that have almost all been dismissed by the courts and urging state lawmakers and governors to declare him the winner of the election.
“We are working with the Biden administration, likely administration, on both the transition and the inauguration as if we are moving forward,” he said on CNN’s State of the Union program. The critical swing states of Michigan, Pennsylvania and Nevada have all certified Mr Biden as the winner of their elections. On Sunday morning, Wisconsin completed its recount of the ballots and reconfirmed that Mr Biden had defeated Mr Trump by more than 20,000 votes. When asked on Sunday if he still believed there was a path to victory, Mr Trump replied: “I hope so. It will take a brave judge, or a brave legislature.” He added that he “would like to file one big beautiful lawsuit,” claiming again that he had “tremendous proof” of widespread election fraud across multiple states, but said his advisers had told him he did not have standing to do so.
Mr Trump on Thursday confirmed that he would leave the White House if Mr Biden was confirmed as the president by the electoral college, but said it would be “very hard thing to concede”. Meanwhile, the Biden team has begun appointing top administration officials, beginning with national security posts. Former chairman of the joint chiefs of staff Michael Mullen on Sunday warned that a delayed transition would be “particularly difficult” in the area of national security, because “national security issues do not wait”.
On Monday Dec. 11, 2020 , Texas filed a motion for leave to file a “Bill of Complaint” with the U.S. Supreme Court to challenge the constitutionality of Pennsylvania, Georgia, Michigan, and Wisconsin’s administration of the 2020 presidential election. The combined filings, which also include a request for an expedited review and a preliminary injunction, spanned more than 150 pages. Here’s what you need to know about this latest election case.
1. This Is Not Bush v. Gore
Texas’s lawsuit is a procedural creature differing greatly from the Bush v. Gore case about the 2000 election. Unlike Bush v. Gore, which traveled to the Supreme Court on appeal, Texas’s lawsuit relies on the Supreme Court’s “original jurisdiction,” or power to hear a case initially.
The Constitution establishes several types of cases that fall within the Supreme Court’s original jurisdiction, but other than cases involving disputes between two states, Congress has created “concurrent jurisdiction” with lower federal courts. This means those other types of disputes may be heard by federal district courts.
Not so in the case of a state suing a state. The U.S. Supreme Court has “exclusive jurisdiction” over such cases, meaning that such disputes can only be resolved by the U.S. Supreme Court.
Paradoxically, however, the Supreme Court does not have to hear a dispute between the states. Rather, controlling precedent holds that whether to hear such a dispute is within the Supreme Court’s discretion. That is why Texas filed a “Motion for Leave to File a Bill of Complaint—because it needs the court’s permission to file the complaint.
In its memorandum in support of its motion, Texas argues that the case “presents constitutional questions of immense national consequences,” namely that the 2020 election suffered from serious constitutional irregularities, including violations by the defendant states of the Electors Clause and the Due Process Clause of the Constitution. The brief also argues that a ruling would help “preserve the Constitution and help prevent irregularities in future elections.”
Texas, however, also argues the Supreme Court’s “review is not discretionary.” In other words, Texas is also asking the Supreme Court to overturn its precedent that holds that the high court need not accept a complaint filed by one state against one or more defendant states. Given the time-sensitivity of the election dispute, it is unlikely that the Supreme Court will want to waste precious days revisiting this precedent—something unnecessary if the Supreme Court accepts the Bill of Complaint on a discretionary basis.
2. The Time Is Short—And the Court Has Already Acted
Along with its Motion for Leave to File a Bill of Complaint, Texas also filed a Motion for Expedited Consideration of its motions, including its second motion, a Motion for a Preliminary Injunction, Temporary Restraining Order, or Alternatively a Stay. In this latter motion, Texas asks the court to order Georgia, Michigan, Wisconsin, and Pennsylvania not to take any action to certify presidential electors, participate in the Electoral College, or vote for a presidential candidate until the Supreme Court resolves Texas’s lawsuit.
Noting that federal law establishes Dec. 8 as a safe harbor for certifying presidential electors, that the Electoral College votes on Dec. 14, and the House of Representatives counts votes on Jan. 6, Texas implores the court to expedite the proceeding, as “absent some form of relief, the defendants will appoint electors based on unconstitutional and deeply uncertain election results.”
Yesterday the court, recognizing the urgency of the matter, ordered responses by the defendant states to Texas’s Motion for Leave to File a Bill of Complaints, and Texas’s Motion for a Preliminary Injunction, Temporary Restraining Order, or a Stay, to be filed by Dec. 10, 2020, at 3 p.m.
3. Texas Presents Serious Constitutional Claims
Notwithstanding some branding Texas lawsuit a “Hail Mary” attempt to block the outcome of the 2020 election, the Lone Star State’s complaint presents serious constitutional issues. Those issues, as Texas puts it, far exceed the electoral irregularities of “the hanging-chad saga of the 2000 election.”
In its Bill of Complaint, filed along with its Motion for Leave, Texas presents three constitutional challenges. Count 1 alleges the defendant states violated the Electors Clause of the Constitution.
The Electors Clause of Article II, Section 1, Clause 2 of the U.S. Constitution provides “[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” As Texas notes, this clause “makes clear that only the legislatures of the States are permitted to determine the rules for appointing presidential electors.”
But, as Texas reveals in its detailed summary of the facts, each of the defendant states, through non-legislative actors, nullified legislatively established election laws in violation of the Electors Clause. For example, several large Wisconsin counties used drop boxes in direct violation of the Wisconsin Election Code that provides detailed procedures by which municipalities may designate sites for the acceptance of absentee ballots. Wisconsin election officials also ignored the statutory certification requirements for absentee ballots, counting votes that the state legislature defined as illegal because they did not include a witness signature and address.
Michigan election officials likewise violated the statutory mandates established by the state legislature, with the secretary of state mass mailing absentee ballots in contravention of state law. And in Wayne County, the home of Detroit’s Democratic stronghold, election officials ignored the state’s signature verification requirement. Georgia also violated the legislature’s requirement for signature verifications, according to Texas’s complaint.
The most egregious violations alleged came from Pennsylvania, where election officials ignored the statutory bar on inspecting ballots before election day, then illegally provided voter information to third parties and allowed illegal curing of the ballots. Significantly, in Pennsylvania these illegal practices only occurred in Democratic strongholds, with Republicans following the law.
These and other practices, Texas alleges, establish a clear violation of the Electors Clause, because that clause makes clear that it is the state legislature—and not administrative agencies, election officials, or even courts—charged under our constitutional system with selecting electors. (This argument finds support in the three-justice concurrence authored by then-Chief Justice William Rehnquist in Bush v. Gore.) From there, Texas’s Count 1 argues that “electors appointed to Electoral College in violation of the Electors Clause cannot cast constitutionally valid votes for the office of President.”
In Count 2, Texas relied on the same facts, then asserted an Equal Protection claim, premised on the reasoning of the majority opinion in Bush v. Gore. In Bush v. Gore, the Supreme Court held that the Equal Protection Clause of the Constitution is violated when states apply differing standards for judging the legality of votes cast for president.
“The right to vote is protected in more than the initial allocation of the franchise,” the Supreme Court wrote. “Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
Then, citing its detailed statement of the facts, which highlighted the defendant states’ disparate treatment of voters, Texas argues in Count 2 that “equal protection violations in one State can and do adversely affect and diminish the weight of votes cast in States that lawfully abide by the election structure set forth in the Constitution.”
Finally, in Count 3, Texas asserts a violation of the Due Process Clause of the Constitution. This claim is premised on Texas’s allegation that the election practices of the defendant states in 2020 reached “the point of patent and fundamental unfairness,” thus violating substantive due process.
These three counts, and the detailed facts Texas alleges, make clear that Texas’s beef is not with the states’ election laws, but with the states’ violation of their own election laws, in contravention of the U.S. Constitution.
4. Texas’s Standing to Sue
Merely alleging the defendant states violated the Constitution, however, is not enough. Texas must also establish that it has “standing” to sue, meaning it has been injured in a way entitling it to stand before the court and seek redress. In its Motion for Leave, Texas argues at great length that it has standing, and presents three separate bases for it.
First, Texas claims the right to present the constitutional claims of its citizens, who “have the right to demand that all other States abide by the constitutionally set rules in appointing presidential electors to the electoral college.”
Second, Texas “presses its own form of voting-rights injury as States” premised on the structure of the Constitution. “Whereas the House represents the People proportionally, the Senate represents the States,” Texas notes. Thus, “[w]hile Americans likely care more about who is elected President, the States have a distinct interest in who is elected Vice President and thus who can cast the tiebreaking vote in the Senate,” the Texas brief stresses. “Through that interest,” the brief continues:
States suffer an Article III injury when another State violates federal law to affect the outcome of a presidential election. This injury is particularly acute in 2020, where a Senate majority often will hang on the Vice President’s tie-breaking vote because of the nearly equal—and, depending on the outcome of Georgia run-off elections in January, possibly equal— balance between political parties. Quite simply, it is vitally important to the States who becomes Vice President.
Finally, Texas argues it has standing to sue as a representative of the state’s “electors.” These electors, Texas argues, suffer a “legislative injury whenever allegedly improper actions deny them a working majority.” Since “[t]he electoral college is a zero-sum game,” the unconstitutional appointment of electors in other states injures Texas’s electors, according to the briefing.
5. Texas Is Not Seeking to Overturn the Election—Or Install Trump
These injuries, Texas asserts, demand a remedy. But the remedy sought is not what some may surmise is the goal—a second term for President Trump.
No, what Texas seeks is for the Supreme Court to mandate that the defendant states comply with the Constitution, and that means that electors are selected by the states’ legislatures. Texas makes this point clear, stressing: “Plaintiff State does not ask this Court to decide who won the election; they only ask that the Court enjoin the clear violations of the Electors Clause of the Constitution.”
6. Texas Brings the Quotes
The Texas attorney general’s legal team excelled in its briefing. With clear and striking facts and detailed and persuasive argument, Texas has made a solid case for Supreme Court involvement, and along the way, the legal team included some stellar quotes—some from years past and some new classics, such as this opener:
Our Country stands at an important crossroads. Either the Constitution matters and must be followed, even when some officials consider it inconvenient or out of date, or it is simply a piece of parchment on display at the National Archives. We ask the Court to choose the former.
If the Supreme Court does intervene, it will indeed be “in the spirit of Marbury v. Madison,” as Texas put it.
The Supreme Court decided on Friday, Dec 11, 2020 not to hear a case filed by the state of Texas and joined by the Trump campaign that sought to have the results of the presidential elections in Pennsylvania, Georgia, Michigan and Wisconsin declared unconstitutional, and effectively hand President Donald Trump a second term.
In an order released Dec. 11th night, the court decided 7-2 not to hear the case because the state of Texas “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
Though there remains active litigation in courts wherein the Trump campaign and its allies are seeking to decertify results in many of the same battleground states, the Supreme Court’s refusal to even hear the Texas case represents a comprehensive rebuke of theories of widespread voter fraud or illegal changes to state election law that cost Trump the election.
Trump had high hopes for the case, calling it the one “everyone has been waiting for” and the “big one” that would deliver him a second term in the White House.
Justices Samuel Alito and Clarence Thomas dissented from the decision to not hear the case, arguing that “we do not have discretion” to turn down suits filed between two or more states, which fall within the Supreme Courts “original jurisdiction.”
“I would therefore grant the motion to file the bill of complaint, but would not grant other relief,” Alito wrote in the dissent. University of Texas School law professor Steve Vladeck said on Twitter that this is the most important point of their dissent.
“For anyone wondering about Justices Alito and Thomas, they’ve been consistent about this technical objection across cases — thatthe Supreme Court has to at least grant leave to file in state-state disputes,” Vladeck wrote. “The much bigger story is their emphasis that they’d grant ‘no other relief.’ ”
Texas Attorney General Ken Paxton had argued that the battleground states had violated their own election laws and the Constitution when state election officials and courts ordered modifications to election protocol, in order to protect voters from the COVID-19 epidemic. Though states across the country, including Texas, made similar changes this year, Paxton chose to sue four battleground states that voted for President-elect Joe Biden.
Legal experts long doubted that the Texas suit had any chance of success. Rick Hasen, an election-law expert at the University of California, Irvine, called it possibly the “dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court.”
He called it a “press release masquerading as a lawsuit” and argued that Texas does not have standing to sue, and even if it did it, would have had to raise objections to these election changes before the election, not after. He added that the remedy Texas seeks would “disenfranchise tens of millions of voters” and that there’s “no reason to believe the voting conducted in any of the states was done unconstitutionally.”
Nevertheless, more than a dozen other Republican state attorneys general filed amicus briefs in support of Texas position, and more than 125 Republican members of Congress also supported declaring those states’ elections unconstitutional. Several of those representatives hailed from the states in question — meaning that, in effect, these lawmakers were questioning the validity of the elections they themselves won.
Other elected Republicans, however, have publicly defended the integrity of November’s election. Republican Attorney General Christopher Carr of Georgia vigorously defended the results of his state’s election, administered by a Republican secretary of state, and the Republican attorney general of Ohio filed a brief stating that his state could not support Texas’s arguments. Sen. John Cornyn, a Texas Republican, also questioned the validity of the suit, telling CNN: “I frankly struggle to understand the legal theory.”
“Georgia’s legislature enacted laws governing elections and election disputes, and the State and its officers have implemented and followed those laws,” Carr wrote in a response to the suit. “To ensure the accuracy of the results of that process, it has completed three total counts of the vote for its presidential electors, including a historic 100 percent manual recount — all in accordance with state law.”
The end of this suit, in which the president had publicly placed such elevated hopes, will not mean an end to election litigation, however.
For instance, Arizona Republican Party Chairwoman Kelli Ward filed a suit with the Supreme Court earlier Friday challenging federal law that sets time limits on states’ determinations of the winners of presidential elections in their states. But experts say little will come from further legal action.
“People ask me when the litigation is going to stop,” Hasen of UC Irvine wrote Friday on Twitter. “I say perhaps not through the entire Biden presidency. But when will the serious litigation stop? It already has.”
MARK LEVIN (HOST of the Mark Levin Show) As the gaggle of legal analysts go on cable TV and sit at their computers and write there their blogs, you don’t have to be a legal scholar to figure out what’s taking place in this country right now. An order was issued 40 minutes after the last brief was filed by the United States Supreme Court. In other words, it had already made up its mind in the case of Pennsylvania. We talked about at length as we have these other cases, but Pennsylvania in particular. It said “the application for injunctive relief presented to Justice Alito and by him referred to the court is denied.”
That’s it. Now, why did they do that?
And so this will be the speculation that starts today and goes on for the rest of time. Now, I’m going to tell you why I think this took place. This was a open and shut case. This was a black letter law case.
But I think the Supreme Court justices now, I think they’re very fearful. I think they’re fearful the way Justice Owen Roberts became fearful after FDR tried to pack the Supreme Court. And then the Supreme Court would issue rulings five to four. five to four, five to four over and over again with Owen Roberts switching in support of FDR’s programs; before that, they were knocking them down because FDR threatened to pack the court. He wanted to add six seats, six.
This court knows full well [coughs] — excuse me — this court knows full well that if Joe Biden’s president and if the Democrats win two seats in Georgia, that there’s really no way to stop the Democrats from actually packing the court, FDR couldn’t do it, but they could. And I think this is a constant in their thinking. That these justices sat in their conference room and had a long talk, not so much about the law and the Constitution but about politics and the political ramification of what would happen to their institution, which is now being threatened, and I think they made a terrible decision and I think history will judge it that way.
It’s not a matter of them getting involved in politics. They’re always involved in politics. What will happen now is any state Supreme Court and any state legislature can change election laws lawlessly, whether they violate their own constitution or whether they violate Article Two of the Constitution and they know the United States Supreme Court will do nothing. Nothing.
And so this will create further chaos and further division in this country. Because they made, in my view, a fundamentally and historically devastating decision to duck. Now, that doesn’t mean the petitioners can’t file for a writ of certiorari. Remember, this was up on an emergency appeal for an injunction. It doesn’t mean the petitioners can’t file for a writ of certiorari for the entire case to be heard. I don’t know what they’re going to do. But I suspect it’s likely the same result.
But these justices are fearful. They’re scared. Some of them are ideological. We know the Democrats on the court stand strongly for their activism. We know that Roberts has flipped. But apparently the other five, “We’re not going to get involved, you see, because the likelihood of changing the results of the election and then will be accused of interfering and you can imagine the editorial pages across the country in the commentary and the legal analysts.” They read it all. They watch it all. They hear it all.
And they know that this would be used against them. So rather than stand up and put an end to the chaos — You know, early on what this court could have done under John Roberts is two simple comments. Number one: The states must comply with Article Two of the Constitution — meaning state Supreme Courts, state governors, state election boards, state secretaries of state are free to change election laws that are used, at least in part, to select electors, period.Period. And then the court could have easily said that when a state supreme court or a state legislature fails to comply, of course, it’s a federal question, we will address it.So follow Article Two and in doing so, comply with the state and federal constitutions, that’s all this court had to do. It could have done it five weeks ago. It had a case presented to it and it didn’t do it.
The commonwealth judge is the hero in this entire matter; the appellate court in Pennsylvania got it right, because that judge was not driven by politics. She was not driven by a result-oriented decision. She was fearless in her defense of the rule of law.
So what the U.S. Supreme Court has done, lawyers will tell you no, but effectively what it has done, is it’s given a rubber stamp to what the state Supreme Court did and to what the legislature did when it violated the Constitution in October 2019 and that has an important reason, 2019, because it was prior to the presidential election. They didn’t know in 2018, they didn’t do in 2017. 2019.
So state legislatures are effectively free to do whatever they want, but the most powerful force in the selection now of our electors are the state supreme courts. They can rewrite the laws. They can defy the federal constitution. Whereas Justice Rehnquist and that court put the Florida court in a box and said, no, you don’t get to do this. Chief Justice Roberts and his court said, oh, yes, you do.
Many people are very excited about the case brought by the state of Texas, which is being joined by other states, I understand Louisiana, perhaps Florida, and they’re suing other states like Pennsylvania and Georgia.
What makes you think that just because the US Supreme Court is taking that case that the result will be a just result. They just had an opportunity — just had an opportunity — to address a black letter law case, as we call it.
You had some legal analysts like at National Review. They were hanging on laches, which was preposterous from day one. You have other legal analysts who are trying to figure out what’s Alito up to?
In the end. In the end, all the filings, all the briefing, all the deadlines were meaningless, pointless, I’m not even clear why Alito did what he did, to be perfectly honest with you.
I don’t know why he did what he did. I don’t know why he needed briefing, particularly if they’re going to issue this order 40 minutes after the last brief was filed; that means they’d already made up their mind, they weren’t going to get involved. This Supreme Court will get involved in a whole lot of stuff. It’ll rewrite laws like it did the Obamacare law.
That when it comes to the biggest of federal questions, the selection of a president or vice president, the obvious violations of Article Two by the Pennsylvania Supreme Court. The obvious violations by the state legislature of the Pennsylvania Constitution and its effect on the choosing of electors.
If it’s not going to take that case and do justice for the American people, I don’t see it taking any other. I could be wrong. I hope I am.
Please understand. All this court had to do early on, say, follow Article Two, all states must follow Article Two. And they must comply with all constitutions, state and federal. In the following article, that’s all it had to say.
I think they’re scared to death.I think they’re very worried about what’s going to happen. I think they think we’re going to lose Georgia. I think they think Biden will be sworn in. And I think they think that any step they take to enforce the federal Constitution against a lawless Democrat Party, lawless state supreme courts, and so forth, acting on behalf of the Biden campaign, acting on behalf of the Democrat Party, I think they think that that will further instigate and motivate actions taking against the Supreme Court and perhaps the judiciary. That’s my view. It’s a terrible, terrible state of affairs.
A sad state of affairs. And they do this in one sentence. Because they can’t justify what they did. What are they going to say?
What are they going to say, the commonwealth judge was exactly right. And she’s the only one of all the judges who’s had the guts to stand up. She would be a good Supreme Court justice because apparently, Amy Coney Barrett wasn’t able to. Our heroes on the bench weren’t able to.
So you’re not going to find me — and I never have — defending lifetime appointments to the Supreme Court. What I opposed was efforts to change the number of justices on the court.
But I’ve always supported, as I told you over and over when we were talking about my book, Men in Black, when we’re talking about my book, The Liberty Amendments for six months. 14-year limits on Supreme Court justices. You see, we get caught up in sometimes in defending the indefensible. Chapter four of The Liberty Amendments, an amendment to establish term limits for Supreme Court justices and supermajority legislative override by Congress and the state legislatures. So I believe in term limits for Supreme Court justices, I do not believe in threatening the institution of the court by packing it, and I believe those threats have resonated in the hallways of the Supreme Court. Of course, they would deny it. “No, no, of course not.”
But if you’re going to reject this emergency injunctive relief request at least have the intellectual integrity to explain it. To explain it. They don’t explain it.
They leave it to the legal analysts and the bloggers to try and figure it out. I’m just not sanguine that the Texas case is going to reach any better result as a result of the things I’m explaining to you for the most part and God, do I pray I’m wrong.
I think this court is hiding under the proverbial table.
I believe that by avoiding taking President Trump’s side, which they consider a lost cause they are hoping that Biden will not pack the Supreme Court. So they are acting like good little toddies and are caving into the pressure from the left. What they fail to realize is that they are making the Constitution an obsolete document. By ignoring constitutional protocol they are enabling governments to legislate right over the law of the land, and the courts will not even do their appointed jobs that of protecting the constitution.
I know the Supreme Court did not have to wait for a case to be brought before them to intercede in the election fraud. They attacked President Trump’s Executive orders during his first year of office, in regards to his immigration policies. They also interceded on the Behalf of Obama and his executive order on DACA. It seems when they want to be political they do so, when they don’t want to do so, they don’t. It seems very biased to me. It makes you wonder if were the other way, and Biden was the loser, what they would have decided to do.
marketwatch.com. “Capitol Report:Supreme Court declines to hear Texas case, ending Trump’s effort to overturn election,” By Chris Matthews; thefederalist.com, “6 Things To Know About Texas’s Supreme Court Petition Over 2020’s Messed-Up Election,” By Margot Cleveland; mediamatters.org, “Mark Levin says the Supreme Court rejected Pennsylvania case trying to overturn the election because it is scared of a Biden administration,” By Media Staffers;
TABLE OF CONTENTS
STATEMENT OF INTEREST OF AMICI …………….1
SUMMARY OF ARGUMENT ………………………………2
I. The Separation-of-Powers Provision of the
Electors Clause Is a Structural Check on
Government That Safeguards Liberty ……4
II. Stripping Away Safeguards From Voting by
Mail Exacerbates the Risks of Fraud ……..8
III. The Bill of Complaint Alleges that the Defendant States Unconstitutionally Abolished Critical Safeguards Against Fraud in
Voting by Mail ……………………………………16
TABLE OF AUTHORITIES
Alden v. Maine,
527 U.S. 706 (1999)…………………………………………..6
Anderson v. Celebrezze,
460 U.S. 780 (1983)……………………………………….1, 5
Anderson v. United States,
417 U.S. 211 (1974)…………………………………………..2
Bond v. United States,
564 U.S. 211 (2011)…………………………………………..6
Bush v. Gore,
531 U.S. 98 (2000)……………………………………4, 5, 19
Bush v. Palm Beach Cty. Canvassing Bd.,
531 U.S. 70 (2000)…………………………………………….4
Crawford v. Marion County Election Bd.,
553 U.S. 181 (2008)…………………………………………..8
FERC v. Mississippi,
456 U.S. 742 (1982)…………………………………………..6
Gregory v. Ashcroft,
501 U.S. 452 (1991)…………………………………………..6
Moore v. Ogilvie,
394 US 814 (1969)…………………………………………..19
Morrison v. Olson,
487 U.S. 654 (1988)…………………………………………..5
NAACP v. State of Missouri, No. 20AC-CC00169-01
(Circuit Court of Cole County, Missouri Sept. 24,
2020), aff’d, 607 S.W.3d 728 (Mo. banc Oct. 9,
2020) ……………………………………………………….15, 17
New York v. United States,
505 U.S. 144 (1992)…………………………………………..6
Republican Party of Pennsylvania v. Boockvar,
No. 20-542, 2020 WL 6304626 (U.S. Oct. 28, 2020)5
U.S. CONST. art. I, § 4, cl. 2 ………………………………….4
U.S. CONST. art. II, § 1, cl. 4…………………………4, 7, 16
BUILDING CONFIDENCE IN U.S. ELECTIONS: REPORT OF
THE COMMISSION ON FEDERAL ELECTION REFORM, at
46 (Sept. 2005) ………………………………………………..9
Jonathan Dienst et al., NJ NAACP Leader Calls for
Paterson Mail-In Vote to Be Canceled Amid Corruption Claims, NBC NEW YORK (May 27, 2020) 15
Federal Farmer, No. 12 (1788), reprinted in 2 THE
FOUNDERS’ CONSTITUTION (Philip B. Kurland &
Ralph Lerner eds., 1987) ………………………………….7
Sarah Fenske, FBI, Secretary of State Asking Questions About St. Louis Statehouse Race, RIVERFRONT
TIMES (Aug. 16, 2016) …………………………………….12
GAO-14-634, Elections: Issues Related to State Voter
Identification Laws 62-63 (U.S. Gov’t Accountability Office Sept. 2014) …………………………………10, 11
Richard Gonzales, North Carolina GOP Operative
Faces New Felony Charges That Allege Ballot
Fraud, NPR.ORG, (July 30, 2019) …………………….13
Brian Heffernan, Berkeley Mayor Hoskins Charged
with 5 Felony Counts of Election Fraud, ST. LOUIS
PUBLIC RADIO (Nov. 21, 2019) …………………………12
In re: Investigation of Irregularities Affecting Counties Within the 9th Congressional District, North
Carolina Board of Elections, Evidentiary Hearing,
at 2-3 ……………………………………………………………13
Ben Kochman, Bronx politician pleads guilty in absentee ballot scheme for Assembly election, NEW
YORK DAILY NEWS (Nov. 22, 2016) …………………..14
Robert G. Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 U. PA. J.
CONST. L. 1, 31 (2010) ………………………………………7
News21, Election Fraud in America ……………………11
THE FEDERALIST NO. 57, at 350 (C. Rossiter, ed.
2003) (Madison, J.) ………………………………………….7
The Heritage Foundation, Election Fraud Cases …11,
U.S. Dep’t of Justice, Federal Prosecution of Election
Offenses (8th ed. Dec. 2017) …………………………..3, 4
STATEMENT OF INTEREST OF AMICI
“In the context of a Presidential election,” state
actions “implicate a uniquely important national
interest,” because “the impact of the votes cast in each
State is affected by the votes cast for the various
candidates in other States.” Anderson v. Celebrezze,
460 U.S. 780, 794–95 (1983). “For the President and
the Vice President of the United States are the only
elected officials who represent all the voters in the
Amici curiae are the States of Missouri,
Alabama, Arkansas, Florida, Indiana, Kansas,
Louisiana, Mississippi, Montana, Nebraska, North
Dakota, Oklahoma, South Carolina, South Dakota,
Tennessee, Utah, and West Virginia.
1 Amici have
several important interests in this case. First, the
States have a strong interest in safeguarding the
separation of powers among state actors in the
regulation of Presidential elections. The Electors
Clause of Article II, § 1 carefully separates power
among state actors, and it assigns a specific function
to the “Legislature thereof” in each State. U.S. CONST.
art. II, § 1, cl. 4. Our system of federalism relies on
separation of powers to preserve liberty at every level
of government, and the separation of powers in the
Electors Clause is no exception. The States have a
strong interest in preserving the proper roles of state
legislatures in the administration of federal elections,
and thus safeguarding the individual liberty of their
1 This brief is filed under Supreme Court Rule 37.4, and all counsel of record received timely notice of the intent to file this amicus
brief under Rule 37.2.
Second, amici States have a strong interest in
ensuring that the votes of their own citizens are not
diluted by the unconstitutional administration of
elections in other States. When non-legislative actors
in other States encroach on the authority of the
“Legislature thereof” in that State to administer a
Presidential election, they threaten the liberty, not
just of their own citizens, but of every citizen of the
United States who casts a lawful ballot in that
election—including the citizens of amici States.
Third, for similar reasons, amici States have a
strong interest in safeguarding against fraud in
voting by mail during Presidential elections. “Every
voter” in a federal election, “has a right under the
Constitution to have his vote fairly counted, without
its being distorted by fraudulently cast votes.”
Anderson v. United States, 417 U.S. 211, 227 (1974).
Plaintiff’s Bill of Complaint alleges that nonlegislative actors in the Defendant States stripped
away important safeguards against fraud in voting by
mail that had been enacted by the Legislature in each
State. Amici States share a vital interest in
protecting the integrity of the truly national election
for President and Vice President of the United States.
SUMMARY OF ARGUMENT
The Bill of Complaint raises constitutional
questions of great public importance that warrant this
Court’s review. First, like every similar provision in
the Constitution, the separation-of-powers provision
of the Electors Clause provides an important
structural check on government designed to protect
individual liberty. By allocating authority over
Presidential electors to the “Legislature thereof” in
each State, the Clause separates powers both
vertically and horizontally, and it confers authority on
the branch of state government most responsive to the
democratic will. Encroachments on the authority of
state Legislatures by other state actors violate the
separation of powers and threaten individual liberty.
The unconstitutional encroachments on the
authority of state Legislatures in this case raise
particularly grave concerns. For decades, responsible
observers have cautioned about the risks of fraud and
abuse in voting by mail, and they have urged the
adoption of statutory safeguards to prevent such
fraud and abuse. In the numerous cases identified in
the Bill of Complaint, non-legislative actors in each
Defendant State repeatedly stripped away the
statutory safeguards that the “Legislature thereof”
had enacted to protect against fraud in voting by mail.
These changes removed protections that responsible
actors had recommended for decades to guard against
fraud and abuse in voting by mail. The allegations in
the Bill of Complaint raise important questions about
election integrity and public confidence in the
administration of Presidential elections. This Court
should grant Plaintiff leave to file the Bill of
The Electors Clause provides that each State
“shall appoint” its Presidential electors “in such
Manner as the Legislature thereof may direct.” U.S.
CONST. art. II, § 1, cl. 4 (emphasis added). Moreover,
“[o]ur constitutional system of representative
government only works when the worth of honest
ballots is not diluted by invalid ballots procured by
corruption.” U.S. Dep’t of Justice, Federal Prosecution
of Election Offenses, at 1 (8th ed. Dec. 2017). “When
the election process is corrupted, democracy is
jeopardized.” Id. The proposed Bill of Complaint
raises serious concerns about both the
constitutionality and ballot security of election
procedures in the Defendant States. Given the
importance of public confidence in American elections,
these allegations raise questions of great public
importance that warrant this Court’s expedited
I. The Separation-of-Powers Provision of the
Electors Clause Is a Structural Check on
Government That Safeguards Liberty.
Article II requires that each State “shall appoint”
its Presidential electors “in such Manner as the
Legislature thereof may direct.” U.S. CONST. art. II,
§ 1, cl. 4 (emphasis added); see also id. art. I, § 4, cl. 2
(providing that, in each State, the “Legislature
thereof” shall establish “[t]he Times, Places and
Manner of holding Elections for Senators and
Thus, “in the case of a law enacted by a state
legislature applicable not only to elections to state
offices, but also to the selection of Presidential
electors, the legislature is not acting solely under the
authority given it by the people of the State, but by
virtue of a direct grant of authority made under Art.
II, § 1, cl. 2, of the United States Constitution.” Bush
v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 76
(2000). “[T]he state legislature’s power to select the
manner for appointing electors is plenary.” Bush v.
Gore, 531 U.S. 98, 104 (2000).
Here, as set forth in the Bill of Complaint, nonlegislative actors in each Defendant State have
purported to “alter an important statutory provision
enacted by the [State’s] Legislature pursuant to its
authority under the Constitution of the United States
to make rules governing the conduct of elections for
federal office.” Republican Party of Pennsylvania v.
Boockvar, No. 20-542, 2020 WL 6304626, at *1 (U.S.
Oct. 28, 2020) (Statement of Alito, J.). See Bill of
Complaint, ¶¶ 41-127. In doing so, these nonlegislative actors may have encroached upon the
“plenary” authority of those States’ respective
legislatures over the conduct of the Presidential
election in each State. Bush v. Gore, 531 U.S. at 104.
This encroachment on the authority of each State’s
Legislature violated the separation of powers set forth
in the Electors Clause. “[I]n the context of a
Presidential election, state-imposed restrictions
implicate a uniquely important national interest. For
the President and the Vice President of the United
States are the only elected officials who represent all
the voters in the Nation.” Anderson, 460 U.S. at 794–
In every other context, this Court recognizes that
the Constitution’s separation-of-powers provisions are
designed to preserve liberty. “It is the proud boast of
our democracy that we have ‘a government of laws,
and not of men.’” Morrison v. Olson, 487 U.S. 654, 697
(1988) (Scalia, J., dissenting). “The Framers of the
Federal Constitution . . . viewed the principle of
separation of powers as the absolutely central
guarantee of a just Government.” Id. “Without a
secure structure of separated powers, our Bill of
Rights would be worthless, as are the bills of rights of
many nations of the world that have adopted, or even
improved upon, the mere words of ours.” Id. “The
purpose of the separation and equilibration of powers
in general . . . was not merely to assure effective
government but to preserve individual freedom.” Id.
This principle of preserving liberty applies both to
the horizontal separation of powers among the
branches of government, and the vertical separation
of powers between the federal government and the
States. “The federal system rests on what might at
first seem a counterintuitive insight, that ‘freedom is
enhanced by the creation of two governments, not
one.’” Bond v. United States, 564 U.S. 211, 220–21
(2011) (quoting Alden v. Maine, 527 U.S. 706, 758
(1999)). “[F]ederalism secures to citizens the liberties
that derive from the diffusion of sovereign power.”
Bond, 564 U.S. at 221 (2011) (quoting New York v.
United States, 505 U.S. 144, 181 (1992)). “Federalism
also protects the liberty of all persons within a State
by ensuring that laws enacted in excess of delegated
governmental power cannot direct or control their
actions.” Id. Moreover, “federalism enhances the
opportunity of all citizens to participate in
representative government.” FERC v. Mississippi,
456 U.S. 742, 789 (1982) (O’Connor, J., concurring in
part and dissenting in part). “Just as the separation
and independence of the coordinate branches of the
Federal Government serve to prevent the
accumulation of excessive power in any one branch, a
healthy balance of power between the States and the
Federal Government will reduce the risk of tyranny
and abuse from either front.” Gregory v. Ashcroft, 501
U.S. 452, 458 (1991).
The explicit grant of authority to state
Legislatures in the Electors Clause effects both a
horizontal and a vertical separation of powers. The
Clause allocates to each State—not to federal actors—
the authority to dictate the manner of selecting
Presidential Electors. And within each State, it
explicitly allocates that authority to a single branch of
state government: to the “Legislature thereof.” U.S.
CONST. art. II, § 1, cl. 4.
It is no accident that the Constitution allocates
such authority to state Legislatures, rather than
executive officers such as Secretaries of State, or
judicial officers such as state Supreme Courts. The
Constitutional Convention’s delegates frequently
recognized that the Legislature is the branch most
responsive to the People and most democratically
accountable. See, e.g., Robert G. Natelson, The
Original Scope of the Congressional Power to Regulate
Elections, 13 U.PA. J. CONST. L. 1, 31 (2010) (collecting
ratification documents expressing that state
legislatures were most likely to be in sympathy with
the interests of the people); Federal Farmer, No. 12
(1788), reprinted in 2 THE FOUNDERS’ CONSTITUTION
(Philip B. Kurland & Ralph Lerner eds., 1987)
(arguing that electoral regulations “ought to be left to
the state legislatures, they coming far nearest to the
people themselves”); THE FEDERALIST NO. 57, at
350 (C. Rossiter, ed. 2003) (Madison, J.) (stating that
the “House of Representatives is so constituted as to
support in its members an habitual recollection of
their dependence on the people”); id. (stating that the
“vigilant and manly spirit that actuates the people of
America” is greatest restraint on the House of
Democratic accountability in the method of
selecting the President of the United States is a
powerful bulwark safeguarding individual liberty. By
identifying the “Legislature thereof” in each State as
the regulator of elections for federal officers, the
Electors Clause of Article II, § 1 prohibits the very
arrogation of power over Presidential elections by
non-legislative officials that the Defendant States
perpetrated in this case. By violating the
Constitution’s separation of powers, these nonlegislative actors undermined the liberty of all
Americans, including the voters in amici States.
II. Stripping Away Safeguards From Voting by
Mail Exacerbates the Risks of Fraud.
By stripping away critical safeguards against
ballot fraud in voting by mail, non-legislative actors in
the Defendant States inflicted another grave injury on
the conduct of the recent election: They enhanced the
risks of fraudulent voting by mail without authority.
An impressive body of public evidence demonstrates
that voting by mail presents unique opportunities for
fraud and abuse, and that statutory safeguards are
critical to reduce such risks of fraud.
For decades prior to 2020, responsible observers
emphasized the risks of fraud in voting by mail, and
the importance of imposing safeguards on the process
of voting by mail to allay such risks. For example, in
Crawford v. Marion County Election Board, this Court
held that fraudulent voting “perpetrated using
absentee ballots” demonstrates “that not only is the
risk of voter fraud real but that it could affect the
outcome of a close election.” Crawford v. Marion
County Election Bd., 553 U.S. 181, 195-96 (2008)
(opinion of Stevens, J.) (emphasis added).
As noted by Plaintiff, the Carter-Baker
Commission on Federal Election Reform emphasized
the same concern. The bipartisan Commission—cochaired by former President Jimmy Carter and former
Secretary of State James A. Baker—determined that
“[a]bsentee ballots remain the largest source of
potential voter fraud.” BUILDING CONFIDENCE IN U.S.
ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL
ELECTION REFORM, at 46 (Sept. 2005) (“Carter-Baker
2 According to the Carter-Baker Commission,
“[a]bsentee balloting is vulnerable to abuse in several
ways.” Id. “Blank ballots mailed to the wrong address
or to large residential buildings might be intercepted.”
Id. “Citizens who vote at home, at nursing homes, at
the workplace, or in church are more susceptible to
pressure, overt and subtle, or to intimidation.” Id.
“Vote buying schemes are far more difficult to detect
when citizens vote by mail.” Id.
Thus, the Commission noted that “absentee
balloting in other states has been a major source of
fraud.” Id. at 35. It emphasized that voting by mail
“increases the risk of fraud.” Id. And the Commission
recommended that “States … need to do more to
prevent … absentee ballot fraud.” Id. at v.
The Commission specifically recommended that
States should implement and reinforce safeguards to
prevent fraud in voting by mail. The Commission
recommended that “States should make sure that
2 Available at https://www.legislationline.org/download/id/1472/file/-3b50795b2d0374cbef5c29766256.pdf.
absentee ballots received by election officials before
Election Day are kept secure until they are opened
and counted.” Id. at 46. It also recommended that
States “prohibit ‘third-party’ organizations,
candidates, and political party activists from handling
absentee ballots.” Id. And the Commission
highlighted that a particular state “appear[ed] to have
avoided significant fraud in its vote-by-mail elections
by introducing safeguards to protect ballot integrity,
including signature verification.” Id. at 35 (emphasis
added). The Commission concluded that “[v]ote by
mail is … likely to increase the risks of fraud and
contested elections … where the safeguards for ballot
integrity are weaker.” Id.
The most recent edition of the U.S. Department of
Justice’s Manual on Federal Prosecution of Election
Offenses, published by its Public Integrity Section,
highlights the very same concerns about fraud in
voting by mail. U.S. Dep’t of Justice, Federal
Prosecution of Election Offenses (8th ed. Dec. 2017), at
28-29 (“DOJ Manual”).
3 The Manual states:
“Absentee ballots are particularly susceptible to
fraudulent abuse because, by definition, they are
marked and cast outside the presence of election
officials and the structured environment of a polling
place.” Id. The Manual reports that “the more common
ways” that election-fraud “crimes are committed
include … [o]btaining and marking absentee ballots
without the active input of the voters involved.” Id. at
- And the Manual notes that “[a]bsentee ballot
3 Available at https://www.justice.gov/criminal/file/1029066/download.
frauds” committed both with and without the voter’s
participation are “common.” Id. at 29.
Similarly, the U.S. Government Accountability
Office concluded that many crimes of election fraud
likely go undetected. In 2014, discussing election
fraud, the GAO reported that “crimes of fraud, in
particular, are difficult to detect, as those involved are
engaged in intentional deception.” GAO-14-634,
Elections: Issues Related to State Voter Identification
Laws 62-63 (U.S. Gov’t Accountability Office Sept.
Despite the difficulties of detecting fraud
schemes, recent experience contains many welldocumented examples of absentee ballot fraud. For
example, the News21 database, which was compiled
to refute arguments that voter fraud is prevalent,
identified 491 cases of absentee ballot over the 12-year
period from 2000 to 2012—approximately 41 cases per
year. See News21, Election Fraud in America.
database reports that “Absentee Ballot Fraud” was
“[t]he most prevalent fraud” in America, comprising
“24 percent (491 cases)” of all cases reported in the
public records surveyed. Id. Moreover, the database
indicates that this number undercounts the total
incidence of reported cases of absentee ballot fraud,
because it was based on public-record requests to
state and local government entities, many of which
did not respond. Id.
4 Available at https://www.gao.gov/assets/670/665966.pdf.
5 Available at https://votingrights.news21.com/interactive/election-fraud-database/&xid=17259,15700023,15700124,15700149,15700186,1570
Likewise, the Heritage Foundation’s online
database of election-fraud cases—which includes only
a “sampling” of cases that resulted in an adjudication
of fraud, such as a criminal conviction or civil
penalty—identified 207 cases of proven “fraudulent
use of absentee ballots” in the United States. The
Heritage Foundation, Election Fraud Cases.
this database undercounts the incidence of cases of
election fraud: “The Heritage Foundation’s Election
Fraud Database presents a sampling of recent proven
instances of election fraud from across the country.
This database is not an exhaustive or comprehensive
The public record abounds with recent examples
of such fraudulent absentee-ballot schemes. For
example, in November 2019, the mayor of Berkeley,
Missouri was indicted on five felony counts of
absentee ballot fraud for changing votes on absentee
ballots to help him and his political allies to get
elected. Brian Heffernan, Berkeley Mayor Hoskins
Charged with 5 Felony Counts of Election Fraud, ST.
LOUIS PUBLIC RADIO (Nov. 21, 2019).
7 Mayor Hoskins’
scheme included “going to the home of elderly …
residents” to harvest absentee ballots, “filling out
absentee ballot applications for voters and having his
campaign workers do the same,” and “altering
absentee ballots” after he had procured them from
voters. Id. Again, in 2016, a state House race in
Missouri was overturned amid allegations of
6 Available at https://www.heritage.org/voterfraud/search?combine=&state=All&year=&case_type=All&fraud_type=24489&pa
7 Available at https://news.stlpublicradio.org/post/berkeleymayor-hoskins-charged-5-felony-counts-election-fraud#stream/0
widespread absentee-ballot fraud that had occurred
across multiple election cycles in the same
community. Sarah Fenske, FBI, Secretary of State
Asking Questions About St. Louis Statehouse Race,
RIVERFRONT TIMES (Aug. 16, 2016).
8 One candidate
stated that it was widely known in the community
that the incumbent ran an “absentee game” that
resulted in the absentee vote tipping the outcome in
her favor in multiple close elections. Id.
Other States have similar experiences. In 2018, a
federal Congressional race was overturned in North
Carolina, and eight political operatives were indicted
for fraud, in an absentee-ballot scheme that sufficed
to change the outcome of the election. Richard
Gonzales, North Carolina GOP Operative Faces New
Felony Charges That Allege Ballot Fraud, NPR.ORG,
(July 30, 2019).9 The indicted operatives “had
improperly collected and possibly tampered with
ballots,” and were charged with “improperly mailing
in absentee ballots for someone who had not mailed it
In the North Carolina case, the lead investigator
testified that the investigation was “a continuous
case” over two election cycles, and that the scheme
involved collecting absentee ballots from voters,
altering the absentee ballots, and forging witness
signatures on the ballots. See In re: Investigation of
Irregularities Affecting Counties Within the 9th
8 Available at https://www.riverfronttimes.com/newsblog/2016/08/16/fbi-secretary-of-state-asking-questions-about-st-louis-statehouse-race.
9 Available at https://www.npr.org/2019/07/30/746800630/northcarolina-gop-operative-faces-new-felony-charges-that-allege-ballot-fraud.
Congressional District, North Carolina Board of
Elections, Evidentiary Hearing, at 2-3.10 The
investigators described it as a “coordinated, unlawful,
and substantially resourced absentee ballots scheme.”
Id. at 2. According to the investigators’ trial
presentation, the investigation involved 142 voter
interviews, 30 subject and witness interviews, and
subpoenas of documents, financial records, and phone
records. Id. at 3. The perpetrators collected absentee
ballots and falsified ballot witness certifications
outside the presence of the voters. Id. at 10, 13. The
congressional election at issue was decided by margin
of less than 1,000 votes. Id. at 4. The scheme involved
the submission of well over 1,000 fraudulent absentee
ballots and request forms. Id. at 11. The perpetrators
took extensive steps to conceal the fraudulent scheme,
which lasted over multiple election cycles before it
was detected. Id. at 14.
Similarly, in 2016, a politician in the Bronx was
indicted and pled guilty to 242 counts of election fraud
based on an absentee ballot fraud scheme. Ben
Kochman, Bronx politician pleads guilty in absentee
ballot scheme for Assembly election, NEW YORK DAILY
NEWS (Nov. 22, 2016).
11 Despite pleading guilty to 242
felonies involving absentee ballot fraud in an election
that was decided by two votes, the defendant received
no jail time and vowed to run for office again after a
short disqualification period. Id.
10 Available at https://images.radio.com/wbt/Voter%20ID_%20Website.pdf.
11 Available at http://www.nydailynews.com/new-york/nyccrime/bronx-pol-pleads-guilty-absentee-ballot-scheme-article1.2884009.
The increases in mail-in voting due to the COVID19 pandemic likewise increased opportunities for
fraud. For instance, in May 2020, the leader of the
New Jersey NAACP called for an election in Paterson,
New Jersey to be overturned due to widespread mailin ballot fraud. See Jonathan Dienst et al., NJ NAACP
Leader Calls for Paterson Mail-In Vote to Be Canceled
Amid Corruption Claims, NBC NEW YORK (May 27,
12 “‘Invalidate the election. Let’s do it again,’
[the NAACP leader] said amid reports more that 20
percent of all ballots were disqualified, some in
connection with voter fraud allegations.” Id.
Hundreds of other reported cases highlight the
same concerns about the vulnerability of voting by
mail to fraud and abuse. Recently, a Missouri court
considered extensive expert testimony reviewing
absentee-ballot fraud cases like these. Findings of
Fact, Conclusions of Law, and Final Judgment in Mo.
State Conference of the NAACP v. State, No. 20ACCC00169-01 (Circuit Court of Cole County, Missouri
Sept. 24, 2020), aff’d, 607 S.W.3d 728 (Mo. banc Oct.
9, 2020) (“Mo. NAACP”). The court held that cases of
absentee-ballot fraud “have several common features
that persist across multiple recent cases: (1) close
elections; (2) perpetrators who are candidates,
campaign workers, or political consultants, not
ordinary voters; (3) common techniques of ballot
harvesting; (4) common techniques of signature
forging; (5) fraud that persisted across multiple
elections before it was detected; (6) massive resources
12 Available at https://www.nbcnewyork.com/news/politics/njnaacp-leader-calls-for-paterson-mail-in-vote-to-be-canceledamid-fraud-claims/2435162/.
required to investigate and prosecute the fraud; and
(7) lenient criminal penalties.” Id. at 17. Thus, the
court concluded “that fraud in voting by mail is a
recurrent problem, that it is hard to detect and
prosecute, that there are strong incentives and weak
penalties for doing so, and that it has the capacity to
affect the outcome of close elections.” Id. The court
held that “the threat of mail-in ballot fraud is real.”
Id. at 2.
III. The Bill of Complaint Alleges that the
Defendant States Unconstitutionally
Abolished Critical Safeguards Against
Fraud in Voting by Mail.
The Bill of Complaint alleges that non-legislative
actors in each Defendant State unconstitutionally
abolished or diluted statutory safeguards against
fraud enacted by their state Legislatures, in violation
of the Presidential Electors Clause. U.S. CONST. art.
II, § 1, cl. 4. All the unconstitutional changes to
election procedures identified in the Bill of Complaint
have two common features: (1) They abrogated
statutory safeguards against fraud that responsible
observers have long recommended for voting by mail,
and (2) they did so in a way that predictably conferred
partisan advantage on one candidate in the
Presidential election. Such allegations are serious,
and they warrant this Court’s review.
Abolishing signature verification. First, the
proposed Bill of Complaint alleges that non-legislative
actors in Pennsylvania, Michigan, and Georgia
unilaterally abolished or weakened signatureverification requirements for mailed ballots. It
alleges that Pennsylvania’s Secretary of State
abrogated Pennsylvania’s statutory signatureverification requirement for mail-in ballots in a
“friendly” settlement of a lawsuit brought by activists.
Bill of Complaint, ¶¶ 44-46. It alleges that Michigan’s
Secretary of State permitted absentee ballot
applications online, with no signature at all, in
violation of Michigan statutes, id. ¶¶ 85-89; and that
election officials in Wayne County, Michigan simply
disregarded statutory signature verification
requirements, id. ¶¶ 92-95. And it alleges that
Georgia’s Secretary of State unilaterally abrogated
Georgia’s statute authorizing county registrars to
engage in signature verification for absentee ballots
in another lawsuit settlement. Id. ¶¶ 66-72.
In addition to violating the Electors Clause, these
actions, as alleged, contradict fundamental principles
of ballot security. As noted above, the Carter-Baker
Report highlighted the importance of “signature
verification” as a critical “safeguard to protect ballot
integrity” for ballots cast by mail. Carter-Baker
Report, supra, at 35 (emphasis added). Without
safeguards such as signature verification, the Report
stated that “[v]ote by mail is … likely to increase the
risks of fraud and contested elections … where the
safeguards for ballot integrity are weaker.” Id. The
importance of signature verification is hard to
overstate, because absentee-ballot fraud schemes
commonly involve “common techniques of signature
forging,” typically by nefarious actors who are
unfamiliar with the voter’s signature. Mo. NAACP,
supra, at 17. Verifying the voter’s signature thus
provides a fundamental safeguard against fraud.
Insecure ballot handling. The Bill of
Complaint alleges that non-legislative actors changed
or abolished statutory rules for the secure handling of
absentee and mail-in ballots in Pennsylvania,
Michigan, and Wisconsin. It alleges that election
officials in Democratic areas of Pennsylvania violated
state statutes by opening and reviewing mail-in
ballots that were required to be kept locked and secure
until Election Day. Bill of Complaint, ¶¶ 50-51. It
alleges that Michigan’s Secretary of State, acting in
violation of state law, sent 7.7 million unsolicited
absentee-ballot applications to Michigan voters, thus
“flooding Michigan with millions of absentee ballot
applications prior to the 2020 general election.” Id.
¶¶ 80-84. And it alleges that the Wisconsin Election
Commission violated state law by placing hundreds of
unmonitored boxes for the submission of absentee and
mail-in ballots around the State, concentrated in
heavily Democratic areas. Id. ¶¶ 107-114.
In addition to violating the Electors Clause,
these actions, as alleged, contradict commonsense
ballot-security recommendations. The Department of
Justice’s Manual on Federal Prosecution of Election
Offenses notes that vulnerability to mishandling is
what makes absentee ballots “particularly susceptible
to fraudulent abuse” because “they are marked and
cast outside the presence of election officials and the
structured environment of a polling place.” DOJ
Manual, at 28-29. According to the Manual,
“[o]btaining and marking absentee ballots without the
active input of the voters involved” is one of “the more
common ways” that election fraud “crimes are
committed.” Id. at 28. For this reason, the CarterBaker Commission made recommendations in favor of
preventing such insecurity in the handling of ballots.
For example, the Commission recommended that
“States should make sure that absentee ballots
received by election officials before Election Day are
kept secure until they are opened and counted.” Id. at
- It also recommended that States “prohibit ‘thirdparty’ organizations, candidates, and political party
activists from handling absentee ballots.” Id.
Inconsistent Statewide Standards. The Bill
of Complaint alleges that the Defendant States
provided different standards and treatment for mailin ballots submitted in different areas of each State,
and that this differential treatment uniformly
provided a partisan advantage to one side in the
Presidential election. It alleges that election officials
in Philadelphia and Allegheny County, Pennsylvania,
applied different standards to voters in those
Democratic strongholds than applied to other voters
in Pennsylvania, in violation of state law. Bill of
Complaint, ¶¶ 52-54. Similarly, it alleges that
Milwaukee, Wisconsin violated state law by
authorizing election officials to “correct” disqualifying
omissions on ballot envelopes by entering information
that the voter should have entered with a red pen,
while no similar “correction” process was granted to
other voters in that State. Id. ¶¶ 123-127. And it
alleges that Wayne County, Michigan provided
differential treatment of its voters, in violation of
state statutes, by simply ignoring statutorily required
signature-verification requirements. Id. ¶¶ 92-95.
Such differential treatment, as alleged under
circumstances raising concerns of partisan bias,
contradicts universal recommendations for integrity
and public confidence in elections. As this Court
stated in Bush v. Gore, “[t]he idea that one group can
be granted greater voting strength than another is
hostile to the one man, one vote basis of our
representative government.” 531 U.S. at 107 (quoting
Moore v. Ogilvie, 394 US 814 (1969)). The CarterBaker Report noted that “inconsistent or incorrect
application of electoral procedures may have the effect
of discouraging voter participation and may, on
occasion, raise questions about bias in the way
elections are conducted.” Carter-Baker Report, at 49.
“Such problems raise public suspicions or may provide
grounds for the losing candidate to contest the result
in a close election.” Id.
Excluding Bipartisan Observers. The Bill
of Complaint alleges that certain counties in
Defendant States excluded bipartisan observers from
the ballot-opening and ballot-counting processes. For
example, it alleges that election officials in
Philadelphia and Allegheny County, Pennsylvania,
violated state law by excluding Republican observers
from the opening, counting, and recording of absentee
ballots in those counties. Bill of Complaint, ¶ 49. And
it alleges that election officials in Wayne County,
Michigan violated state statutes by systematically
excluding poll watchers from the counting and
recording of absentee ballots. Id. ¶¶ 90-91.
Such actions, as alleged, raise concerns about
the integrity of the vote count in those counties. As
the Carter-Baker Report emphasized, States should
“provide observers with meaningful opportunities to
monitor the conduct of the election.” Carter-Baker
Report, at 47. “To build confidence in the electoral
process, it is important that elections be administered
in a neutral and professional manner,” without the
appearance of partisan bias.” Id. at 49. When
observers of one political party are illegally and
systematically excluded from observing the vote
count, “the appearance of partisan bias” is inevitable.
Id. For counties in Defendant States to exclude
Republican observers weakens public confidence in
the electoral process and raises grave concerns about
the integrity of ballot counting in those counties.
Extending the Deadline to Receive Ballots.
The Bill of Complaint alleges that a non-legislative
actor in Pennsylvania—its Supreme Court—extended
the statutory deadline to receive absentee and mail-in
ballots without authorization from the “Legislature
thereof,” and that it directed that ballots with illegible
postmarks or no postmarks at all would be deemed
timely if received within the extended deadline. Bill
of Complaint, ¶¶ 48, 55. Again, these non-legislative
changes raise concerns about election integrity in
Pennsylvania. They created a post-election window of
time during which nefarious actors could wait and see
whether the Presidential election would be close, and
whether perpetrating fraud in Pennsylvania would be
worthwhile. And they enhanced the opportunities for
fraud by mandating that late ballots must be counted
even when they are not postmarked or have no legible
postmark, and thus there is no evidence they were
mailed by Election Day.
These changes created needless vulnerability to
actual fraud and undermined public confidence in the
election. As the Department of Justice’s Manual of
Federal Prosecution of Election Offenses states, “the
conditions most conducive to election fraud are close
factional competition within an electoral jurisdiction
for an elected position that matters.” DOJ Manual, at
2-3. “[E]lection fraud is most likely to occur in
electoral jurisdictions where there is close factional
competition for an elected position that matters.” Id.
at 27. That statement exactly describes the conditions
in each of the Defendant States in the recent
The allegations in the Bill of Complaint raise
important constitutional issues under the Electors
Clause of Article II, § 1. They also raise serious
concerns relating to election integrity and public
confidence in elections. These are questions of great
public importance that warrant this Court’s attention.
The Court should grant the Plaintiff’s Motion for
Leave to File Bill of Complaint.