The attorney for state GOP chief Kelli Ward is asking the U.S. Supreme Court to void federal laws that sets Monday’s deadline for the vote of the Electoral College.
In a last-ditch effort to salvage his case, Jack Wilenchik argues that his client was denied her legal right to inspect all the ballots cast in preparing her lawsuit claiming that Donald Trump really outpolled Joe Biden in Arizona. Instead, Maricopa County Superior Court Judge Randall Warner permitted inspection of only a random sample.
Warner, in limiting what Ward could review, pointed out that federal law required all legal disputes over the presidential election to be completed no later than Dec 8. That is known as the “safe harbor” deadline for resolving electoral issues.
And a separate statute says the electors pledged to the winning candidate cast their vote this coming today.
But all that, Wilenchik told the justices in his Friday filing, is illegal. And he wants the high court to both void the federal deadlines and give Ward more time to prove her allegations that when all the ballots are examined the state’s 11 electoral votes will go to Trump.
“Where the state courts make a final determination of an action without affording the parties a proper opportunity to present evidence, they violate the due process clause of the Fourteenth Amendment,” he said.
Only thing is, for Wilenchik to win that point he has to convince the nation’s high court that the federal laws on presidential elections — and, specifically, the deadlines they set — are themselves unconstitutional. And those laws have been on the books since at least 1887.
Wilenchik said that is irrelevant.
“Petitioners due process rights were violated when the lower court allowed only two days for discovery into over three million ballots, given the crucial importance of ensuring that every legal vote is counted, that presidential-elector litigation is justly determined, and that the public holds confidence in the bona fide winner,” he wrote.
The petition is based on Ward’s assertion that she proved to the trial court that Trump “received at least hundreds more votes in Maricopa County than candidate Biden.” That, she contends, is the result of uncounted votes and ballots she said were “flipped” to the Democrat.
It is true that a random sample of damaged ballots did turn up errors.
These are ballots where stray marks, stains or even votes for more than one candidate for an office require that they be duplicated by hand onto a clean ballot that can be read by the machine.
Of the 1,626 ballots that were inspected before time ran out, seven would have gone to Trump versus two for Biden. That Ward argues, amounts of an error rate of slightly more than 0.5% in a race where the Democrat’s 10,457-vote edge amounts to just 0.3% of the total.
But what Warner concluded — and the Arizona Supreme Court affirmed earlier this week — is that applying that error rate to the 27,859 duplicated ballots in Maricopa County still only added no more than 153 votes for Trump, far short of what would be needed to change the outcome.
Ward, however, said she believes the same error rate applies to “adjudicated” ballots, those where there were questions raised about voter intent. That, for example, could include situations where someone circled a name rather than filling in the oval next to the name.
In those cases, election workers also made decisions about what the voter actually wanted.
She figures that there were about 450,000 duplicated and adjudicated ballots statewide. And that, Ward argues, makes that half-percent error rate “significant.”
But Wilenchik said she never got a chance to make her case because of “unconstitutional deadlines on the authority of state courts to decide presidential-elector litigation.”
“The states and their courts possess a plenary power to deciding the timing of presidential-elector disputes, into which Congress may not intrude,” he argued to the justices.
“Indeed, presidential electors act solely by authority of the state that in turn receives its authority from the federal constitution,” Wilenchik said. He said the federal law that sets deadlines “does not grant broad authority in Congress to make or alter the state’s own laws or judicial processes for resolving disputes about electors.”
In fact, he argues, the only actual deadline that federal law can enforce is the one on Jan. 6, the day that Congress meets to count the electoral votes.
Wilenchik is asking the justices to declare that the “safe harbor” deadline for resolving disputes and the date for electors to cast their vote is an illegal infringement on state authority and then to send Ward’s dispute back to Warner’s court to give her more time to make her case.