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Supreme Court Orders Pennsylvania to Stop Counting Ballots

Hmmm, smells like the presidential election in Florida in 2000, when the Supreme Court ordered counting of the ballots to stop in Bush v. Gore. But it is more complicated. It is not directly about the Republican Senate primary between the Connecticut-based hedge fund manager David McCormick and the New Jersey-based celebrity quack Mehmet Oz, but it has implications for that election.

The case in question is about a 2021 Pennsylvania judicial election in which some ballots came in before the deadline, but without the voter writing a date on the outer envelope, as required by Pennsylvania law. Pennsylvania law also says that ballots arriving on time should be counted. Election officials have admitted that they counted ballots with obviously incorrect future dates (e.g., 2/2/31), so they feel that if an incorrect date doesn't invalidate a ballot, then a blank date field shouldn't either. The Board of Elections set aside the undated ballots. Later it decided to count the undated votes, but one of the candidates sued.

The trial court sided with the Board but a higher state court reversed the decision. The Pennsylvania Supreme Court refused to overturn the decision. Then the U.S. Court of Appeals for the Third Circuit ordered the undated ballots to be counted. Before that could happen, one of the candidates went to the U.S. Supreme Court and yesterday Justice Samuel Alito, who has jurisdiction over the Third Circuit, ordered the counting to stop, at least for now. When we tell you something is complicated, please believe us.

The same issue has come up in the 2022 Republican senatorial primary. Some of the ballots that arrived on time are undated. Should they be counted or not? Alito could have easily said: "This mess is due to contradictory state election laws, so it is up to the Pennsylvania Supreme Court to make the decision," but he didn't, just as the Supreme Court in 2000 thought it knew Florida election law better than the Florida Supreme Court.

The case is interesting from a legal perspective because it pits state law, which has specific, albeit contradictory, requirements, against federal law, which says that ballots cannot be invalidated due to minor errors that don't impact the integrity of the election (like using a red pen instead of a blue pen to mark the ballot). McCormick, who is currently behind Oz by about 900 votes, wants the undated ballots in his race to be counted. Accordingly, he is flogging the Third Circuit's decision for all it is worth. If the undated ballots in his race are not counted, the show is over and he lost. There probably aren't enough ballots left to allow him to catch Oz, but counting them is his only chance, however small, so he wants all the undated ballots to be counted. Oz doesn't want them counted, citing Pennsylvania law requiring dates, even bogus dates.

Alito's decision is temporary. Sooner or later, probably sooner, he is going to have to make an actual decision what to do next, which might be to have oral arguments before the entire Court. If he does that, the Pennsylvania Senate primary could be in limbo for a long time, which would make the Democratic nominee, Lt. Gov. John Fetterman (D-PA), a happy man, but would make the chairman of the NRSC, Sen. Rick Scott (R-FL), a very unhappy man. Though Scott seems to be a pretty unhappy man in general, so maybe an excuse to be more unhappy will actually make him happy. (V)

The Investigation of the Leak is Leaking

Chief Justice John Roberts was clearly very miffed when a draft opinion written by Justice Samuel Alito concerning Roe v. Wade leaked and was published by Politico. He indicated his miffedness by ordering an investigation to find the leaker. The investigators want all the clerks' cell phone records, which naturally united all of them against the investigation. When you have 36 very smart, very motivated, young lawyers being investigated, at least 35 of whom are completely innocent, what do you get? Leaks!

This time Politico didn't get the scoop. Instead the story went to CNN's long-time Supreme Court reporter and legal analyst, Joan Biskupic, who wrote a piece about the investigation yesterday. Given that none of the clerks are happy with some government official demanding all their phone records and more, especially since none of them are suspected of committing a crime (leaking a draft opinion is unprecedented but is not illegal), this leak was inevitable. The only question is which media outlet would get the leak. CNN won this round, but there are likely to be more rounds. Note to Supreme Court clerks: If you run out of media outlets to publish your leaks, we're available.

Some of the clerks are so upset that they are starting to hire private lawyers to advise them. They have every right to do that, of course. And what do lawyers do? They often tell their clients to sue. Imagine the fun and games when some clerk decides to sue his or her employer—the Supreme Court. The investigators also want the clerks to sign affidavits whose language hasn't been leaked—yet—but which likely says: "I didn't do it." If 35 of the clerks agree to sign such affidavits but one refuses, that could be a clue, but not necessarily, since the holdout could be innocent and claiming something akin to a Fifth Amendment right not to testify.

The whole mess is coming at a very bad time as the justices are wrestling with finalizing some tough decisions. Not only is there Roe, but also a case that could expand gun owners' rights in blue states that have put some limits on gun ownership. Decisions to allow states to ban abortions but not allow states to ban guns would set off a gigantic firestorm that could completely dominate the midterms. The clerks play a role in all decisions, advising their bosses. reading drafts, and generally helping the justices in any way they can. Having them all feel like they are suspected criminals is not going to make the process go more smoothly.

Clerks may have many good reasons for not surrendering their phones or even their phone records, to the marshal of the Supreme Court, Gail Curley. There could easily be personal information there that is really none of the Court's business and many of them are likely to resent the intrusion. The best course for the clerks would be to band together and say collectively that as lawyers, they know what their rights are and they are not going to help out with a fishing expedition, especially when no crime has been committed, just an embarrassment.

Furthermore, the clerks are not the only possible suspects. One of the justices could be the leaker. Or maybe even the wife of one of the justices. Former clerks have told CNN that as many as 75 people, including secretaries and permanent staff members, might have had access to Alito's draft, and any one of them could be the original leaker.

The great cell phone hunt may also be in vain. Remember, the clerks are (largely) the best and the brightest Ivy League Law School graduates in recent years. Would a supersmart Harvard Law School graduate put such a hot potato on his or her cell phone when you can buy an untraceable burner phone for $40 in cash? In fact, it is not even certain a phone was involved. If the leaker had a printed copy of the draft, he or she could have photocopied it at a local photocopy shop and mailed the copy to Politico's office.

Needless to say, with leaks, more leaks, and stories about internal tensions, public opinion of the Court will only drop more. Once Americans begin to see the Court as a minilegislature, with its own politics and infighting, the one thing that gives it power—its reputation as the upholder of justice—will be forever damaged. Roberts may soon have to decide how much he is willing to damage the Court in his effort to find the leaker. (V)

Republicans' Plans to Steal the 2024 Election Have Leaked Out

Politico seems to be pretty good at getting leaks (although it missed the above one). The draft of the Supreme Court ruling that will repeal Roe v. Wade is a doozy. Now it has another one that is probably more important. It found out about a Republican plan to win the 2024 elections. You might at first think: "Aha! They are going to do a lot of polling, figure out what the voters want, and then find candidates who can spout those things from memory flawlessly and convincingly, no matter what they actually believe."

If you thought that, you'd be wrong. But you probably didn't think that because if that were the plan, it wouldn't be news. That is kind of what political parties are supposed to do. Instead, they have adopted a strategy often (erroneously) credited to Joseph Stalin that says: "It's not who votes that count. It's who counts the votes."

The leak, which Politico got from an anonymous RNC staffer, shows that what the Republicans want to do is take control of the election process, including the vote counting. One aspect is to install poll workers at precincts in heavily Democratic areas who have been trained to challenge voters' eligibility to vote. For example, if photo ID is required, they will know exactly which IDs are valid and which are not, and will know if any defects on the ID invalidate it (e.g., if laminating a driver's license is not allowed by state law, then the poll worker would refuse to let someone with a laminated license vote).

In addition, the RNC will set up a hotline to connect friendly poll workers with friendly lawyers to help keep people from voting. The friendly lawyers will, of course, be experts on the election law of their state, and will be able to advise the friendly poll workers how to proceed in questionable cases. Republicans are not even bothering to deny this part of the strategy because, in effect, it is about enforcing state law to the absolute maximum, which is technically legal. Matthew Seifried, the RNC's election "integrity" director for Michigan, proudly said: "Backing up those front-line workers, it's going to be an army. We're going to have more lawyers than we've ever recruited, because let's be honest, that's where it's going to be fought, right?"

Will the RNC be able to sign up enough friendly poll workers and friendly lawyers? Well, they have already trained 6,000 people and submitted 850 names to the Detroit clerk so far, with more to follow. No doubt they are also recruiting and training lawyers to staff the hotlines in swing states at a ferocious clip as well.

Friendly poll workers and friendly lawyers who can advise them on the phone are only front line. The next level is the Amistad Project, a self-described election "integrity" group that has worked with Rudy Giuliani in the past. Their focus is recruiting friendly local district attorneys who can intervene on Election Day. A D.A. could threaten an election supervisor with prison for doing something the D.A. didn't like, even though it might be legal. The threat alone could dissuade the election supervisor from doing it even if the supervisor knew the election law better than the D.A. One area that is certain to be targeted is making sure that plenty of Republican-friendly poll workers are chosen, even in areas with hardly any Republican voters. State law often requires some kind of balance between the parties and the D.A. might have a different idea of what this means in a heavily Democratic area than the local election supervisor.

Nick Penniman, CEO of the election watchdog group Issue One, is concerned that partisan poll workers could simply initiate a legal conflict at the polling place that might cause a friendly judge to later invalidate all the votes from that precinct. Penniman is worried that if there is enough confusion at enough precincts, the state legislature might decide to just ignore the election results as tainted and appoint its own slate of electors that a friendly Congress might just accept. As it often is, we have asymmetric warfare here. The DNC also helps recruit poll workers, but it doesn't have an elaborate training program that helps them prevent people from voting in heavily Republican areas.

Also at the local level are the "poll watchers." Before 1980, Republicans would send private citizens in a police-like uniform into heavily minority polling places to demand ID from people on line to vote, even in states that had no such requirement. Their assignment was to tell voters that voting illegally would get them thrown in prison for decades, so maybe they should just forget about voting. They had absolutely no authority to harass voters—in fact, doing so was a felony—but the Republicans believed minority voters wouldn't challenge people dressed in police-like uniforms who tried to bully them. This practice ended up in court and the RNC signed a consent decree to stop doing it, but the decree expired in 2020 and is likely to come back full blast in 2024.

To help any bullies who are not up-to-date on how to challenge a voter, the RNC has helpfully produced cards to refresh their memories. Here is a screen shot Politico obtained of one of the cards:

RNC card showing how to challenge a voter

OK, that's the poll workers, the friendly lawyers, the bullies, and the local D.A.'s but there is more. The next step up is the Board of Canvassers, which certifies the election. The name varies from state to state, but there are generally boards at the county and state level that certify the votes. The RNC is actively trying to install people on these boards who are convinced the 2020 election was stolen. If someone is on the record stating that the 2020 election was stolen, he or she might make a fine Board member, as far as the RNC is concerned. Prof. Rick Hasen of UC Irvine, an expert on election law, said: "You shouldn't have poll workers who are reporting to political organizations what they see. It creates the potential for mucking things up at polling places and potentially leading to delays or disenfranchisement of voters, especially if [the poll workers] come in with the attitude that something is crooked with how elections are run."

Then we get to the level of the secretary of state, who runs elections. The RNC is backing friendly candidates for secretary of state all around the country. Donald Trump-backed Rep. Jody Hice (R-GA) just lost his primary in Georgia, but there are plenty of other races that are flying under the radar. Issues at this level deal with the instructions given to the county clerks about mailing and verifying absentee ballots. If Mr. Smith forgot to dot the "i" in his signature on the envelope, should his ballot be tossed because the signature on file has a dotted "i"? Also at this level is how vigorously proof of citizenship should be pursued. Maybe a white-skinned person who speaks flawless English is actually an undocumented immigrant from Canada and a brown-skinned person who has a Spanish accent is a third-generation resident of Texas near the border? The instructions from the SoS could dictate how they are treated. Also relevant is whether county officials are instructed to make sure all voters can prove they live in the precinct they are voting in. The list goes on and on. Unless the Democrats wake up and start dealing with this stuff, they may be in for a rude awakening on Nov. 8. (V)

Republicans Will Start Investigations Immediately if They Win the House

House Republicans are salivating at the prospect of so many investigations if they capture the House they barely know where to begin. Axios has the scoop on this one. Sorry, Politico and CNN. The plans were discussed at a recent Heritage Foundation retreat in eastern Maryland and someone who was there spilled the beans to Axios' Lachlan Markay.

The Republicans plan on investigating the Biden administration, starting at the inauguration and continuing until the then-current date. They also plan to coordinate with outside groups in order to get more legal firepower than their congressional staffs can provide. The goal of the retreat was to boot up the process now so Republicans can hit the ground running on Jan. 3 if they win. One person said they plan to do 4 years of oversight in 2 years, so they need to get started now. Some of the areas that going to be top targets include these:

In short, expect a 10-ring circus, with many House committees "investigating" everything from shellfish to Twitter, without any intention of proposing legislation, but merely to mislead people into thinking the current administration is corrupt and clueless. (V)

Select Committee Gives Jordan More Time to Comply with Subpoena

The Select Committee investigating the Jan. 6 coup attempt sent Rep. Jim Jordan (R-OH) a subpoena. He immediately deposited it in his office's paper shredder for safekeeping. Now the Committee has sent him another one, extending the time for him to show up and explaining in a bit more detail what they would like to chat about. It is 100% certain the new letter will join the first letter in the shredder's basket (unless the basket has been since emptied, because Jordan does a lot of shredding). There is zero chance that Jordan will appear and there is a 100% chance that the chairman, Rep. Bennie Thompson (D-MS), knows this.

So why is Thompson wasting his time like this? Our best guess this that Thompson is trying to signal to AG Merrick Garland how reasonable he is and how unreasonable Jordan is, and thus how necessary an indictment is. If Garland does indict Jordan for failure to obey a lawful subpoena, there will be a trial. The prosecution will argue that when you are served with a lawful subpoena, you must obey it. The defense will argue that the indictment is politcally motivated and, besides, Congress cannot subpoena its own. The prosecution will win. What the Supreme Court will do in 2026 or 2027 is anyone's guess.

The case is important for another reason: If Republicans capture the House, they will subpoena Democrats left and right for all manner of (mostly made up) reasons. It will get interesting if some of the Democrats refuse to show up, saying "Jordan doesn't have to show up, so why do we?" This will put the House Republicans in a bit of an awkward position. If they say the House can subpoena members, then what is Jordan's argument for refusing? If they say that obeying a subpoena is a user option, then why can't Democrats also choose that option? They will have to twist themselves into pretzels to come up with some kind of story. They'll have to ask Senate Minority Leader Mitch McConnell (R-KY) for help; maybe members of the party that doesn't hold the White House are free to ignore subpoenas in a non-election year. (V)

Raffensperger Will Testify

If it seems like all of today's news is about investigations and leaks, that's because all of today's news is about investigations and leaks. Another big investigation is the one being run by Fulton County District Attorney Fani Willis. She has empaneled a special grand jury that is investigating an actual potential crime, not just an embarrassment, like the one at the Supreme Court. Specifically, she wants to know if Donald Trump broke state law when he asked Georgia Secretary of State Brad Raffensperger to "find" another 11,780 votes for him. Interfering with an election is a crime in Georgia.

The key witness is Raffensperger. He didn't want to testify unless he was subpoenaed because voluntary testimony might look like "betraying Trump" to some of the voters the Secretary will need to keep his job in November. Being served with a subpoena gives him a solid alibi: "I was forced to do it." He has now announced that he will obey the subpoena and testify today. He probably won't say anything he hasn't already said in public, but saying it to a special grand jury under oath investigating a crime is a different kettle of fish from leaking it to the media. He might even play the recording of Trump "asking" him to "find" those votes. That could be a crucial piece of evidence in the trial if Trump is indicted. Here is the subpoena, which was obtained by The Atlanta Journal-Constitution:

Raffensperger's subpoena

The special grand jury will also hear from five of Raffensperger's former and current top aides, with whom he no doubt discussed the phone call. One of them is Gabe Sterling, the Secretary's deputy, who was the manager of the voting system used in 2020. He is famous for holding a press conference in Dec. 2020 to tell Trump to stop calling for violence.

The general counsel of the secretary's office, Ryan Germany, will also testify. Germany was in the room during the infamous call. He made comments defending the count while Trump was on the line. That means there are at least two witnesses to the crime. There might have been more, as well, as Raffensperger might have had a good idea in advance what was going to happen and wanted as many witnesses to it as possible. He might have also asked his secretary to come in to listen, just to have another witness. She will also testify about what she knows. More subpoenas are expected in the coming weeks.

Willis is leaving no stone unturned. Her team of 10 prosecutors is still talking to 60 potential witnesses and others who might have information about the case, in addition to the 50 they have already interviewed. She also wants to interview the 16 bogus presidential electors Trump assembled. They might have interesting stories to tell. From the scope of the investigation, it is clear Willis understands the seriousness of the matter. Her investigation is no joke or PR stunt. She wants to build a rock-solid case, take the case to trial, and get a conviction. It is pretty clear she understands the national implications of the trial and doesn't want to blow it.

Special grand juries do not have the power to indict anyone, but they can issue subpoenas and collect evidence to make a case that Willis can then take to a regular grand jury, which can indict people based on the evidence collected by the special grand jury. Willis has repeatedly said that she will not hesitate to bring an indictment if she discovers that someone broke the law. Although she didn't name any persons of interest, observers think it might be a living former president, and not Jimmy Carter, Bill Clinton, George W. Bush, or Barack Obama. The ramifications of an indictment and conviction would be enormous. (V)

South Texas Special Election on Flag Day Could Be a Bellwether

No, flags are not the central issue in the special election on June 14 for the seat of Filemon Vela (D), who retired from the House on March 31 to become a well-paid lobbyist. But the future of the Democratic Party is. Vela's district, TX-34, starts along the Mexican border at Brownsvile, and runs due north as far as San Antonio, but east of that city. It is poor, urban, and 85% Latino. National Republicans are throwing everything but the kitchen sink into the race to flip the district and turn the entire Latino-heavy border region red. National Democrats are sitting it out because whoever wins will stay in the House only until Jan. 3, 2023. The election on Nov. 8 will use a completely different map.

The leading Republican is Mayra Flores, a young Latina who is the outreach chair for the Hidalgo County Republican Party. Republicans desperately want to have a telegenic young Republican Latina to use as the poster girl in Texas to get Latinos to vote Republican and Flores is their pick. She is married to a Border Patrol agent, which may sit well with Texas Republicans.

The top Democrat in the race is Daniel Sanchez, a lawyer and Cameron County commissioner. He has not run any TV ads, whereas Flores is saturating the airwaves using RNC money. National Democrats have pooh-poohed the importance of the race since the winner will be in the House for only a few months and would rather spend their money on the race for the full term election.

Although the district is D+10, Joe Biden won it by only 4 points due to the unexpectedly good showing by Donald Trump among Latinos near the border. So the special election could go either way. The "loser" will likely get another chance, though. There are two minor candidates also in the race and a runoff in August is expected. If that one becomes Sanchez vs. Flores, Democrats could put money behind Sanchez if they fear the PR consequences of a telegenic young Latina Republican winning in South Texas.

Flores is utilizing the Democrats' lack of interest in Sanchez campaign to send the message: "Democrats don't care about Latinos." That is not really true, but she is broadcasting the message far and wide and it could resonate with Latinos in South Texas. And PR aside, the Democrats' margin in the House is 220 to 208 with seven vacancies. If Flores wins, the 12-seat margin will be reduced to 11, which does not leave Speaker Nancy Pelosi (D-CA) with a lot of margin for error. (V)

Top Impeachment Lawyer Is Running for the House

Speaking of House elections, the lead lawyer for the Democrats in the first impeachment of Donald Trump, Daniel Goldman, is planning to run for the House in NY-10. Goldman became the Democrats' hero-for-a-week with his intense questioning of witnesses during the House hearings that preceded the vote to impeach Trump the first time.

The newly redrawn district. which covers lower Manhattan and part of Brooklyn, is extremely blue. Whoever wins the Democratic primary will be in Congress until at least Jan. 3, 2033, and probably decades more. Furthermore, due to the new district lines, it is an open seat and Democrats from all over the state have expressed interest in it, especially Democrats whose district has been radically changed by the new map, including Rep. Mondaire Jones (D-NY), a gay Black congressman who currently represents part of Westchester County. Former mayor Bill de Blasio seems to have forgotten how unpopular he is in New York City, as he is running anyway. So are former representative Elizabeth Holtzman, assemblywoman Yuh-Line Niou and others.

The race will be a free-for-all. Niou represents part of the district in the state Assembly, but Jones is a sitting member of Congress and Goldman is nationally very well known and can probably draw donations from Democrats all over the country. In fact, Goldman even had a national profile before the impeachment as he was an assistant U.S. attorney in the SDNY under Preet Bharara, another high-profile Democrat. Needless to say, a race in a district that covers all of Wall Street is going to be very, very expensive.

Also of note here is that New York does not have runoffs. With 10 candidates already in the race for the Aug. 23 primary, in principle a well-financed candidate could win with 11% of the vote. It is our guess at this point that de Blasio is a spent force, Niou won't be able to raise enough money, and the race is likely to be dominated by Jones, who will appeal to the Bernie wing of the Party, and Goldman, who will mostly remind everyone that he helped impeach Trump.

This race will be the second most closely watched Democratic primary in New York. The #1 primary will pit Reps. Carolyn Maloney (D) and Jerrold Nadler (D) against each other because the new map throws them into the same district. Both are old warhorses who have been in Congress about 30 years. Nadler could have run in NY-10, since part of his old district is there, but he knew the competition there would probably be even worse than facing Maloney. She can reel off a series of concrete accomplishments that affect part of the new district, including getting funding for the new Second Avenue subway and her role in helping 9/11 first responders. Nadler is likely to point out that if he loses, there will be no Jewish members of the House from New York City. That may help him raise a lot of money from Jews outside the district (so, he probably won't mention that Goldman is Jewish and would solve this particular problem if he is elected in NY-10). Nadler also has a long progressive record. It will be a real barnburner. (V)

Californians May Vote on Numerous Ballot Initiative in November

A large number of high-profile ballot initiatives have been submitted in California. Three important ones have already qualified and six more key ones are likely to qualify soon. Here is a brief rundown of them:

Initiatives that have already qualified to be on the ballot Initiatives that may yet qualify

Yup, California is a blue state. If many of these pass, it will be a signal for other blue states to try the same things. Once half the country is doing something, it puts pressure on the other half to follow suit. All of these bear watching. (V)

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