Lawsuits Over the 2020 Presidential Election: Evidence of the Unrest in Politics and Division in America

In the last four years, America has become increasingly divided. In fact, citizens have seemed to turn on their neighbors or family because of differing political views.[1] A two-party system once separated by different philosophies of government has instead developed into a war between two enemies. Notably, this lack of civility and intolerance of disagreement first reared its head during the 2016 Presidential election and has only gotten worse, creating obstacles for the 2020 presidential transition. The United States has a longstanding democratic tradition that has served as a model for other nations, but recent divisions and political actions have upended that tradition and raised questions with regard to the transfer of power between elected leaders. Because of dysfunctions in politics, the courts have become the last bastion of for maintaining order in the democratic process. At the creation of the United States of America, the founding fathers gave the judicial branch the power to adjudicate disputes according to law to protect the fabric of the nation. It is incumbent upon the courts and the judicial system to be sure that the basic principles of democracy are protected, and that the government does not abuse its power, undermining the very institutions in which democracy is grounded.

While controversial, the 2000 presidential election serves as an example of a situation in which disagreement over election results was handled with civility and deference to the broader democratic process. In a contentious race between Al Gore and George W. Bush, ballots were being counted and recounted in Florida in order to determine the next president of the United States. The incredibly tight race continued for weeks as legal battles emerged. On December 12, 2000, the United States Supreme Court decision (Bush v. Gore 531 U.S. 98) settled the dispute over the election recount in Florida. By a 5-4 vote of the Court, the recount was stopped, and George Bush won the state of Florida and its 25 electoral votes. That gave Bush a national electoral vote count of 271 to Al Gore’s 266. With 270 electoral college votes needed to win the election, Bush was named President-elect. Following this Supreme Court decision, Gore conceded. During his concession speech, Gore mentioned his disappointment and disagreement with the Supreme Court, but also highlighted that “partisan rancor must now be put aside.”[2] It was later detailed that a statewide recount in Florida would have meant a Gore victory. The Florida Supreme Court had ordered a statewide recount; however, the Bush team appealed that decision to the United States Supreme Court. Justice Scalia, writing for the Court, opined that the recount would do irreparable harm to Bush and the country by casting a cloud upon the legitimacy of the election.[3] In accepting the Supreme Court decision and conceding, Gore showed his selflessness and his commitment to democratic institution. He made it known that the advancement of the country’s institutions and faith in the American political process took precedent over his electoral outcomes.

The 2020 election was unlike any election in the past due to the pandemic and unprecedented turnout among the American voters. Approximately 155 million Americans cast ballots in the election. Many states modified their election rules to allow changes in mail-in ballots and some states even extended deadlines for when ballots could be accepted if they were properly postmarked. President Trump almost immediately began to cast doubt on the integrity of the election.

After the election, all 50 states have certified election results and Joe Biden is the president-elect. This has unleashed a range of lawsuits by President Donald Trump and the Republican leadership in the hopes of overturning the election and having President Trump declared the winner due to election irregularities, alleged fraud, and illegal votes. To date, roughly 50 lawsuits have been filed on behalf of President Trump and the Republican party. As of this writing, virtually all of the lawsuits have been dismissed by federal judges due to a lack of evidence. Many of those federal judges were actually appointed by President Trump himself. President Trump and the Republican leadership seem to hold the hope that if they can get a case to the Supreme Court, where the President has appointed three Justices in his first term, the Court will somehow find merit in arguments that other courts have found baseless and override the will of the American voters. That belief took a major blow when the United States Supreme Court rejected a challenge to certify President-elect Biden’s victory in Pennsylvania. On Tuesday, December 7th, 2020, in a one-sentence ruling, the Supreme Court dismissed that suit, writing “The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.”[4]

In another attempt to challenge the election, the Attorney General of the State of Texas filed a motion for leave to file a bill of complaint against four states– Pennsylvania, Wisconsin, Michigan, and Georgia– titled Texas v. Pennsylvania, et al., Docket Number 220155 in the United States Supreme Court. The Supreme Court would have original jurisdiction on this case due to the fact that it is states suing other states. Disputes between two or more states are to be decided at the federal level by the Supreme Court. Seventeen other states have joined Texas as parties in the motion, arguing that the due process rights of their citizens have been violated in this election by the four states who allowed voting irregularities and illegally modified their voting procedures to allow Joe Biden’s victory in those four key states. On December 11th, 2020, the United States Supreme Court rejected the Texas motion on the basis that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” This ruling deals a fatal blow to President Trump’s use of the courts to overturn the election.[5]

The process now moves to acceptance of the votes by the United States Congress. Under 3. U.S.C §15, counting electoral votes in Congress was established 1887 as the Electoral Count Act. The act established procedures for the counting of electoral college votes by Congress following a presidential election. The Vice-President presides over this hearing before the Congress wherein states submit their electoral college votes after they have been certified. The purpose of the Act is to minimize federal government involvement in election disputes and places the primary responsibility of resolving disputes in an election upon states. The law was enacted ten years after the highly disputed presidential election of 1876 in which some states submitted two sets of electors and a divided Congress was unable to resolve the deadlock.[6]

President Trump seems to hold the belief that through this Act and the 12th Amendment to the Constitution, Vice-President Mike Pence can overrule the election results of November 3, 2020 and the certification of those electoral college votes by individual states. Recently, several states have come forward presenting cases in the hopes of moving Vice-President Pence in this direction. In Gohmert, et al. v. Pence, US Dist. Ct. for Eastern Dist. of TX (Tyler Division) 6:20-cv-00660, the plaintiffs asked U.S. District Judge Jeremy Kernodle to declare the Electoral Count Act unconstitutional and give Vice President Pence the freedom to reject any and all electoral certificates unilaterally with no recourse of appeal by either house of Congress. The United States Department of Justice, who represented Vice President Pence, asked the Court to dismiss the Gohmert lawsuit, stating it would supersede the powers of both the House and the Senate, and Judge Kernodle agreed. He dismissed the case, stating the Court was without subject matter jurisdiction and that Congressman Gohmert and the plaintiffs lacked standing to bring such a lawsuit. That decision was made January 1, 2021. OnJanuary 2, 2021, the plaintiffs appealed. A three-Judge panel of the Fifth Circuit Court of Appeals affirmed the District Court’s decision, stating that the plaintiffs lacked standing to bring such a lawsuit.

The most recent attempt to provide Vice-President Pence with the power needed to overturn the electoral college votes came on January 4, 2021, in the case Wisconsin Voters Alliance, et al. v. Pence US Dist. Ct. for Dist. of Columbia Civ. Action No. 20-3791 (JEB). In the memorandum opinion from the case, written by Judge James Boasberg, he states “the suit rests on a fundamental and obvious misreading of the Constitution.” He further mentions “It would be risible were its target not so grave: the undermining of a democratic election for President of the United States.” In the memorandum, Judge Boasberg describes the plaintiffs beliefs regarding U.S. Constitution article II §1; specifically, that the plaintiffs believe “state legislatures alone must certify Presidential votes and Presidential electors after each election, and that Governors or other entities have no constitutionally permitted role.” That is not the case. In many states, so called “other entities” do, in fact, have the ability to certify votes. For example, in Georgia, the Secretary of State certifies the votes cast and “lay the returns for presidential electors before the Governor,” under Georgia Code Ann. §21-2-499(b). In Michigan, “the governor shall certify, under the seal of the state, to the United States secretary of state, the names and addresses of the electors of this state chosen as electors of president and vice-president of the United States,” under Michigan Comp. Laws Ann. §168.46. Judge Boasberg describes the Plaintiffs beliefs regarding U.S. Constitution article II §1as “somewhere between a willful misreading of the Constitution and fantasy. In the end, the Court denied the Motion.

The election results of all 50 states have been certified. The electoral college met Monday, December 14th, casting the necessary 270-plus electoral college votes, and Joe Biden will be sworn in as President of the United States on January 20, 2021. The Courts have proven they are the healthy and civil branch of government holding together the institutions of our democracy. We can only hope that the executive and legislative branches of government will return to civility and follow their lead.

References

[1] Emma Goldberg, “‘Do Not Vote for My Dad’: When Families Disagree on Politics,” The New York Times, August 27, 2020, sec. U.S., https://www.nytimes.com/2020/08/27/us/family-politics-children-democrat-republican.html.

[2] History com Editors, “Al Gore Concedes Presidential Election,” HISTORY, December 11, 2019, https://www.history.com/this-day-in-history/al-gore-concedes-presidential-election.

[3] Justice Antonin Scalia, “BUSH v. GORE,” LII / Legal Information Institute, December 9, 2000, https://www.law.cornell.edu/supremecourt/text/00-949.

[4] Ian Swanson, “All Eyes on Supreme Court in Texas Fight,” Text, TheHill, December 11, 2020, https://thehill.com/homenews/administration/529839-all-eyes-on-supreme-court-in-texas-fight.

[5] Emma Platoff, “U.S. Supreme Court Throws out Texas Lawsuit Contesting 2020 Election Results in Four Battleground States,” The Texas Tribune, December 11, 2020, https://www.texastribune.org/2020/12/11/texas-lawsuit-supreme-court-election-results/.

[6] “3 U.S. Code § 15 - Counting Electoral Votes in Congress,” LII / Legal Information Institute, 1887, https://www.law.cornell.edu/uscode/text/3/15.