This case began as a state-level complaint by Plaintiff Kelli Ward (a Trump Elector) against Constance Jackson and ten other Biden Electors. After failing to be resolved in the trial court due to certain technicalities, it morphed into a petition to the U.S. Supreme Court to address the constitutionality of the Electoral Count Act “deadlines.”
Joe Biden’s slim lead over Donald Trump in Arizona was 10,457, just outside the 0.1% trigger for an automatic recount. The statutorily required audit of votes revealed no discrepancies, but Plaintiff Ward challenged the count based on misconduct by election officials, signature verification, and ballot duplication. She requested a reasonable inspection to compare mail-in ballot signatures with the signatures on file and to compare duplicate ballots with the original ballots from which they were copied. [Duplicate ballots are created by a bi-partisan team when the original ballot cannot be tabulated by machine.] Ward presented several witnesses in the trial court who testified to having seen duplicate ballots that did not reflect the original ballot.
Despite the trial court acknowledging that the Electoral College deadlines were not necessarily firm, “You may be right on the law, that we’ve got more time than I think we have, but I’m reluctant to take that chance,” it limited the time and scope of the inspection. After two days and a partially complete inspection, Ward sought to expand discovery to review more ballots because the error rate could potentially yield enough incorrect ballots to change the outcome. However, the trial court disagreed and denied relief based on federally established deadlines. The appellate court affirmed the lower court’s decision and confirmation of Biden electors.
Joined by the entire slate of Trump Electors, Ward petitioned the U.S. Supreme Court to address two questions:
Does the Electoral Count Act (inclusive of 3 U.S.C. § 5, the “safe harbor” statute) impose unconstitutional deadlines on state courts’ final determination of disputes over presidential electors?
Was Petitioner [Ward] denied due process under the Fourteenth Amendment, where because of the “deadlines” found in the Electoral Count Act (inclusive of 3 U.S.C. §§ 5, 7), the trial court allowed only two days to discover and inspect the ballots in a presidential-electors race in which over three million votes were cast?
The Electoral Count Act of 1887 was passed in response to the challenged presidential election of Samuel Tilden and Rutherford B. Hayes in which there was no process by which Congress could resolve disputes over electoral votes. Under this act, states had until December 8, 2020, to resolve any disputes over electoral votes in order for the vote to be considered “conclusive” when the Electoral College met on December 14, 2020, to place final votes. If these dates are constitutional, the trial court would have been correct in limiting the inspection, but if they weren’t, Ward contends that her due process rights were violated by having only two days to review the three million contested ballots.
Ward argued that the U.S. Constitution only grants the authority to the state to set the date for choosing electors – Election Day – but that Congress does not have authority to set deadlines for determining state judicial disputes. The only date that matters for resolving disputes should be set by the state in advance of when Congress meets to count the electoral votes which, in this case, is January 6, 2021. In fact, Arizona had set its own timetable for hearing election disputes and these dates were based on the timing of litigation and fair discovery, not the Electoral College.
Petitioner Ward asked the U.S. Supreme Court to accept her petition, declare the Electoral Count Act deadline unconstitutional, and remand the case to the lower courts to determine if additional time should be granted to inspect the balance of questionable ballots.
On February 22, 2021, the U.S. Supreme Court denied the petition to hear this case.
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