‘Texas has not suffered harm simply because it dislikes the result of the election,’ Pennsylvania lawyers wrote.
Lawyers for the four states at the center of a Texas lawsuit that was attempting to get the Supreme Court to overturn the presidential election said the suit was legally indefensible, was littered with false conclusions, and simply regurgitated previous legal arguments that have gone nowhere.
The attorneys general in Georgia, Michigan, Pennsylvania, and Wisconsin each filed responses to the Texas lawsuit, which the Supreme Court rejected Friday.
They argued the Texas suit made “bogus claims,” and was “aimed at disenfranchising large swaths of voters.” And they argued that Texas had no standing to file the suit in the first place. The Supreme Court agreed.
“Texas has not suffered harm simply because it dislikes the result of the election,” the Pennsylvania lawyers wrote in their opposition to the Texas lawsuit.
The Texas lawsuit called for the court to invalidate the election results in four states won by Democrat Joe Biden, claiming that the voting procedures in those four states violated the Constitution and resulted in irregularities, diluting the votes of Texans.
Without the electoral votes from the four states, neither Biden nor President Donald Trump would reach the 270 electoral college vote threshold required to win the presidency, throwing the election to the House of Representatives. Trump has the advantage in the House because Republicans control more state delegations, each of which has one vote in deciding the election.
More than 125 congressional Republicans, including House minority leader Kevin McCarthy, signed a letter backing the Texas lawsuit, a last-ditch Hail Mary to block Biden from the presidency.
All 50 states have already certified their election results and the electoral college will certify the final results on Monday.
The following are summaries of the Texas lawsuit’s allegations in each of the four states, and the responses from the top lawyers in each of the states.
Georgia
In Georgia, the Texas lawsuit alleged that Republican secretary of state Brad Raffensperger “unilaterally abrogated” a Georgia statute regarding the absentee ballot signature verification process, and changed the way officials notified voters whose absentee ballots were rejected.
According to the suit, Georgia law “authorizes and requires a single registrar or clerk” to reject absentee ballots for a variety of reasons, including ballots with invalid signatures and ballots that aren’t signed at all. But Raffensperger, in a settlement with the state’s Democratic Party, changed the process to require three registrars to sign off on rejected ballots.
The lawsuit says “these cumbersome procedures,” which weren’t ratified by the state legislature, make it “far more difficult to challenge defective signatures.”
The lawsuit said Raffensperger, in the settlement, also changed the process for notifying voters whose absentee ballots were rejected so they could “cure” them. The law requires notification in writing, but according to the lawsuit the settlement requires notice by telephone if a telephone number is available.
The effect of the changes, which “made it more likely that ballots without matching signatures would be counted, had a material impact on the outcome of the election,” the lawsuit says. According to the lawsuit, the rejection rate for absentee ballots in Georgia dropped from 6.42 percent in 2016 to 0.37 percent in 2020. Because Biden received almost twice as many absentee ballots as Trump, Trump would have won the election by more than 25,000 votes had absentee ballots in 2020 been rejected at the same rate as 2016, the lawsuit alleges.
In their response to the lawsuit, lawyers for the state wrote that “Georgia did what the constitution empowered it to do: it implemented processes for the election, administered the election in the face of logistical challenges brought on by COVID-19, and confirmed and certified the election results — again and again and again.”
It’s not a violation of Georgia law, they argued, for the secretary of state to send “recommended best practices” for reviewing ballots to county election officials, including recommending a panel of three registrars or clerks — instead of just one — review ballots in question. Only one registrar makes the final call, with agreement from at least one other member.
They also wrote that it does not conflict with state law to alert “a voter of ballot deficiencies by telephone and in writing.”
Regarding the lower 2020 absentee ballot rejection rates, they wrote that rejection rates for signatures remained “relatively unchanged.” A more likely explanation for the lower rejection rates are changes the legislature approved in 2019. Voters are no longer required to write their date of birth and address on their ballot, and the law adopted the “cure” process allowing voters to fix rejected ballots, a “process that did not exist Georgia law prior to 2019.”
“These changes by the Georgia Legislature in 2019 — combined with the 2020 election’s record turnout and extensive public and private educational efforts regarding voting procedures — explain the allegedly lower rejection rates better than Texas’s fact-less speculation about the (lawful) steps taken to process absentee ballots,” Georgia’s response to the suit reads.
A spokesman for the Georgia Secretary of State’s Office declined to comment on pending litigation.
Michigan
The Texas lawsuit claimed that 174,384 absentee ballots in Wayne County, Mich., can’t be traced to registered voters. However, in a response filed with the court on Thursday, the state said it is “at a loss to explain these allegations” as it is “unclear” what the suit means by “counted without a registration number.”
“If they are suggesting that they could not determine the number of registered voters in each precinct, that is information that can be obtained under Michigan’s Freedom of Information Act,” the filing says.
The response also pushed back against claims that extra ballots were cast, which the suit claims was likely the result of Detroit election workers running ballots through tabulator machines multiple times without oversight from Republican poll watchers.
“It is unclear why they think extra ballots or votes were cast. Moreover, the theories or claims that large numbers of unaccounted for ballots showed up at the TCF Center, and that Republican challengers were wrongly denied access or had challenges improperly rejected, have been explained or rejected,” the response says.
The suit says that a Republican member of the Wayne County Board of Canvassers determined that 71 percent of Detroit’s counting boards were unbalanced, meaning the number of people who checked in did not match the number of ballots cast.
The state’s response says Michigan law requires the county boards of canvassers to disclose the number of unbalanced precincts that are not reconciled after the county canvas concludes, though the existence of such precincts does not provide reason to refuse to certify results and is a common occurrence that can happen for a number of reasons.
The office of the Michigan Secretary of State declined to comment on pending litigation.
Pennsylvania
The Texas suit made a series of allegations about illegal and biased voting procedures in Pennsylvania, but lawyers for the Keystone State responded that Texas’s claims are “littered with patently false allegations and conclusions.”
“Texas’s suggestion of a wide-ranging conspiracy is a fantasy,” they wrote.
The Texas lawsuit repeated claims made in previous, unsuccessful challenges to Pennsylvania’s election results. It alleged that Democratic secretary of state Kathy Boockvar “unilaterally abrogated several Pennsylvania statutes requiring signature verification for absentee ballots” as part of a settlement with the League of Women Voters, including doing away with the state’s statutory signature verification process.
The lawsuit challenged a Pennsylvania supreme court ruling extending the deadline to accept mail-in ballots until three days after Election Day and it claimed that the state broke a promise to the U.S. Supreme Court to segregate late-arriving ballots.
The lawsuit further claimed that Philadelphia and Allegheny counties illegally restricted poll watchers. And it alleged Boockvar violated state election code by urging local election leaders to provide information about defective ballots to political operatives before Election Day, allowing them to contact voters so they could “cure” their ballots. The state election code requires ballots to remain sealed and in locked containers until Election Day.
By removing the ballots for examination before 7 a.m. on Election Day, Boockvar “created a system whereby local officials could review ballots without the proper announcements, observation and security,” the lawsuit states. “This entire scheme, which was only followed in Democrat majority counties, was blatantly illegal.”
“It is now impossible to determine which ballots were properly cast and which ballots were not.”
Pennsylvania lawyers responded that it isn’t true Boockvar abrogated state statutes, or that poll watchers were illegally restricted. They argued “state law requires candidate representatives to be in the room, but the viewing distance is committed to the county boards.”
There is no evidence, they argued, of different standards for voters in Democratic counties, and it is “utterly false” that the state broke its promise to segregate late-arriving ballots.
“The qualified ballots received during the three-day extension were segregated and counted separately,” according to the response. “That number of ballots is too small to change the outcome of any federal election in Pennsylvania.”
The Pennsylvania lawyers said it is “perfectly rational for a state to provide counties discretion to notify voters that they may cure procedurally defective mail-in ballots.”
They also pushed back on a report cited in the Texas lawsuit by Pennsylvania state representative Francis X. Ryan that alleged the state’s vote was “fraught with inconsistencies” and “irregularities.”
The “mailed” date refers to the date on which the ballots were mailed out to voters. Ryan’s report claims there were more than 100,000 ballots with no mailed date, that were returned on or before the mailed date, or returned only a day after the mailed date. And there is no explanation for why state data showed 2.7 million mail-in votes had been sent out on November 2 and then showed 3.1 million two days later.
The Pennsylvania lawyers called Ryan’s report “fundamentally faulty” and said it “arrives at incorrect numbers because it mischaracterizes the total number of absentee and mail-in ballots.” Their response says there were approximately 2.7 million mail-in votes and 400,000 absentee votes, but that Ryan’s report doesn’t recognize the difference. It is unclear from the Pennsylvania response why, exactly, some mail-in ballots were returned on or before their “mailed” date.
Wisconsin
The Wisconsin Elections Commission pushed back against a number of claims made in the Texas lawsuit, including allegations that United States Postal Service employees were backdating ballots received after Election Day.
The claims come from Ethan Pease, a box-truck delivery driver who transported truckloads of mail-in ballots to the sorting center in Madison, Wis. Pease, who was on contract with the Postal Service, claimed that a senior USPS employee told him on November 4, the day after Election Day, that the Wisconsin/Illinois Chapter of the Postal Service had assigned employees to find 100,000 missing ballots.
The 100,000 ballots were “found” after Election Day, the suit claims.
Reid Magney, a spokesman for the commission, said no ballots received after 8 p.m. on November 3 were counted, regardless of when they were postmarked, after the issue was extensively litigated in federal courts in the weeks leading up to the election. He disputed Pease’s account saying it “does not coincide in time or place” and that there was no “ballot dump.”
“In Milwaukee, absentee ballot counting started at 7 a.m. on November 3 and continued until 3 or 4 a.m. on November 4. No absentee totals could be reported for the city of Milwaukee until all the absentee ballots were counted, which is why the numbers changed so dramatically in the early morning hours,” he said. “There were no significant changes to unofficial election results after Wednesday morning, November 4.”
The suit also claimed the administrator of the City of Milwaukee Elections Commission had, in a training video issued in April, “declared that a ‘witness address may be written in red and that is because we were unable to locate the witnesses’ address for the voter to add an address missing from the certifications on absentee ballots.”
The suit claimed poll watchers detailed how canvas workers carried out the policy, using red-ink pens to alter certificates on absentee envelopes which were then cast and counted.
Reid said the Commission has, since October 2016, advised clerks that they could fix missing witness address components based on “reliable information” — guidance made by Republican members of the Commission and approved unanimously. The guidance, which was designed to ensure voters would not be penalized if witnesses left off an element of their address, had been in effect for eleven statewide elections, including the 2016 presidential and presidential recount.
The suit also claimed Wisconsin had set up over 500 “unmanned, illegal, absentee ballot drop boxes” during the election. Reid said state law does not prohibit absentee-ballot drop boxes, and that the Commission provided municipal clerks with guidance to ensure security of the drop boxes at the recommendation of the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency.
Finally, the suit alleged the Commission and local election officials encouraged voters to unlawfully declare themselves “indefinitely confined,” which allows voters in the state to avoid security measures such as signature verification and photo ID requirements.
Reid argued the Commission did not encourage anyone to make such a declaration, and that two county clerks who encouraged those to do so had gone against the Commission’s direction.
“When the Legislature sued the two county clerks, the Wisconsin Supreme Court unanimously approved the WEC’s guidance about indefinitely confined voters — including that voters could not use it to get out of providing a photo ID,” Reid said.