➡ The team has developed a strategy to address election integrity issues, arguing that candidates should have the right to enforce election rules. They believe that this should be a nonpartisan issue, as it affects all candidates, regardless of their political affiliation. The team also argues that changes to election rules, such as extending the voting period, can cause financial harm to candidates, as it changes their campaign strategies and increases their costs. They hope that their arguments will lead to a more functional standard for election integrity.

➡ The text discusses a legal debate about the accuracy of vote counts in elections, focusing on whether or not illegal votes are included in the final tally. The argument is that all candidates, regardless of their party size or chances of winning, should have the right to challenge the rules of the election they’re participating in. The text also highlights the difficulties faced by courts in deciding these cases, especially during disputed elections. The goal is to ensure that all candidates can challenge election rules, promoting fairness and accuracy in the voting process.

➡ The article discusses the issue of election timelines, with some states ending voting on election day and others extending it for two weeks. The author argues that it’s important for all candidates to know when the election ends well in advance, and that the Supreme Court should clarify this. The article also touches on the concept of ‘standing’ in court cases, and the author’s belief that it’s been too narrowly applied in recent election cases. Lastly, the author expresses concern about late-arriving ballots, suggesting they can undermine the perceived legitimacy of election results.

Thank you for joining us. Judicial Watch’s virtual briefing after our Supreme Court argument today. I’m Russell Nobel and along with Eric Lee and Robert Popper are part of the Election Integrity Group that initiated this lawsuit in Illinois challenging the counting of ballots received after Election Day. I’m joined by Paul Clement, who has argued over 120 cases at the United States Supreme Court. He’s the former Solicitor General under George Bush and he represented our clients in Congressman Boss versus the Illinois State Board of Elections. And before we dive into everything, a couple housekeeping issues. We’ll start by walking through the case and giving some overview of both the case and how we thought the argument went today.

We were very positive with the argument. We think it went very well. The court was very interested in what Paul had to say. And once we’ve covered that, we’ll take some of your questions. If you have any questions, just use the raise your hand feature in zoom and we’ll call on you so you can ask your question directly. If you have any follow up questions, feel free to raise your hand again and we’ll do our best to get to you. We’re scheduled to go for about an hour and so we’ll try to get to as many questions as we can if we run out of time.

There is an email address eventsudicialwatch.org if you send your questions there, we’re do our best to get you an answer after the fact. And with that, let’s get started. And Paul, do you want to give some background on the case and sort of, you know, what brought you onto the case and why you wanted to get involved with it? Sure. No, I’d be happy to. And I’d sort of start by thanking you, Russ, and the rest of the team for bringing this case in the first instance. I think you identified, you know, today’s case was all about who has standing to bring these cases, who can be in court in the first place, but both in terms of the standing theory, but also on the merits about whether elections end on election day or whether they should keep going for another 14 days, I think you found a great case.

You found some great plaintiffs. And you know, in my view, I think you, in the complaint and the declarations in the district court, you alleged more than enough to make it clear that, you know, there is standing here. I mean, you know, standing may sound like a technical legal question. I was, you know, greatly blessed to clerk for Justice Scalia many years ago. He wrote a law review article where he summed standing doctrine up in you know, a single what’s it to you? And what’s it to you in an election? And a candidate and electors from the presidential election.

Of course, of course, you have a distinct and unique concern in the election. But the district court in the first instance didn’t see it that way. You all appealed it to the 7th Circuit in Chicago, gave a great argument. You went from convincing, not the district court to convincing one judge, but it takes two to win in the court of appeals. But you did get a great dissenting opinion from Judge Scudder. So a hat tip to him. And then you wrote a great cert petition that got the court’s attention and said, this is a really important issue.

And the court granted the case. And that’s where sort of I stepped in to play a role along with the rest of the team. And I was very, you know, pleased and privileged to do that. And we kind of worked together to craft these briefs where we really told the Supreme Court that of course the congressman has standing, and essentially there are ways to rule in his favor that are, you know, sort of more case specific. Maybe the most obvious injury that the congressman faced was if the election’s going to be 10 days longer or 14 days longer, he needs to pay his staff for another 14 days.

He needs to send people to the polls to monitor the counting to ensure the integrity of the election. So he had that kind of classic pocketbook injuries. That was one way we gave for the court to sort of rule in our favor. We also said the candidate has an obvious interest in making sure that the margin of victory is an accurate margin of victory, and he’s not going to either lose the election or get fewer votes than he should because the electoral officials are counting illegal ballots. And then maybe our broadest theory, but I have to say the one that’s always appealed to me the most, just as a common sense matter, is, of course a candidate has standing to challenge the rules of the election.

That’s just common sense. If the rules change, they’re going to hurt one candidate or the other, and there’s really no reason that you wouldn’t have the candidate standing to bring the challenge or another way. I think to make the same point is to say, of course, if you tell the candidate that based on his theory, there are going to be illegal ballots counted in his election or her election, well, of course the candidate has standing to say, let’s only count the lawful ballots in the election. So we kind of gave the court in our briefs a menu.

And I guess what I’D say is, you know, my reaction to the argument today is things went well for us and most of the debate was, well, how should we win? You know, which one of these sort of things that we put on the menu is the best way for the court to decide this case? But with maybe only a couple of exceptions, I think the justices were looking at this and saying, okay, it’s pretty obvious the candidate should have standing, but what exactly going forward does a candidate have to allege? Does he have to allege just an interest in being a candidate and having the rules followed? Does he need to say, and this could affect my margin of victory? Or does he need to say, this could affect how much I spend? Yeah, thank you.

And that’s a very good intro into what went on today and our arguments. I think I should have started out by backing up and giving sort of an overview of how we got here. As you all recall, as many of our members will recall, in 2020, obviously, there was a lot of pre election litigation, post election litigation brought both for and against Donald Trump. And so following the 2020 election, one of the issues that popped up during the 2020 election was this idea of, of ballots being received after Election Day. And as a result of the pandemic, a lot of states kept expanding the timeline for ballots to come in.

And so as an organization, Judicial Watch decided to formulate an idea on how to attack that practice. And so the first part of that program was we filed suit against Illinois, which is the case that now is at the Supreme Court. We lost to the two lower courts on standing before the trial court and the circuit court. But in the process of bringing that suit, we also filed another suit in Mississippi, where we got through on the merits. Excuse me, got through on standing, and we won on the merits. And now we have a third suit that’s pending in California on behalf of Congressman Issa, suing the state of California for its practice of receiving post election or ballots after Election Day.

That case has been stayed pending the resolution of today’s case. And so the first. This is the first case, is now the first of our project that has made it to the Supreme Court. In this case, as Paul explained, it’s about standing. And standing is not really one of those super interesting issues in the sense that, you know, people want to know why ballots get arrived, you know, have to arrive by Election Day. But this is sort of like the plumbing of a house, right? I mean, like, you have to get in there. You have to.

It’s like the functional part, like you have toyou have to show how you’re injured. And you can’t just sue something because you don’tyou can’t sue over something because you don’t like it. And our members probably recall that a lot of Donald Trump’s lawsuits in 2020 were thrown out because they alleged he didn’t have standing. And so what we did was try to address two problems that we saw in the 2020 elections. This convoluted standing problems at the lower court level. And then also this sort of, why are states allowing ballots to come in two weeks after Election Day? And so today, we finally got to the Supreme Court to have them resolve the standing question.

We’re looking forward to getting to the merits question as to why states are allowed to receive ballots after Election Day. But I thought the arguments went really well today. The court seemed very receptive to it. I mean, it’s. Paul explained, we presented three reasons why we should win. We’re happy to win on all three or just one, but I think we tried to do. And y’ all’s team, your team crafted a great strategy of, you know, typically in law, you start with your strongest argument, and then you sort of the second and third arguments are your fallback positions.

But Paul, when we first started this, he had this unique idea which was, it was really an elegant and a great idea that once he said it, it was obvious, but it was, it was like, well, we feel so comfortable that we should win because Congressman Boss and our candidate, or excuse me, our clients spend money. Why don’t we have the court look through all these other issues too, so we can get a more functional standard so we don’t have all these issues in the lower courts. And so the courts can resolve these election integrity issues, because as it stands right now, the civil rights activists, it’s like an asymmetric warfare, right? The civil rights activists have unlimited standing to go in to get courts to strike down election integrity provisions, whereas traditionalists and conservatives like us never have standing to enforce or prop up the election integrity measures.

And so if we can establish standing, it’ll give us a lot better opportunity to do the other election integrity litigation that people like Judicial Watch and other activist groups do, like list maintenance and other motor voter bills to try to promote election integrity. But with all that said, you know, we had the argument today. I think you went for. I think Paul was allotted 30 minutes in argument. He probably went about 50 minutes. They were obviously very interested in what you had to say. We were joined by the United States government The Solicitor General’s office joined us and agreed with the court that they should reverse and render a verdict in our client’s favor, at least in terms of standing.

And then we were opposed by the State of Illinois and their Attorney General’s office, with their Solicitor General handling the argument. You know, one thing that was sort of unique about this case for us is that actually the ACLU and the League of Women Voters submitted briefs agreeing with us that candidates do have standing. So it’s really. It’s sort of a non. It should be a nonpartisan issue and obvious, to be honest with you. As I’ve joked internally, it’s just only a lawyer would think that somebody, not somebody that’s involved in an election or a candidate doesn’t have an interest in how the rules are.

And so we brought Paul in to help explain to a bunch of judges and a bunch of other lawyers why they should not. And he did an excellent job today. I thought, you know, probably the thing that they were most conflicted with was the competitive standing theory, this idea that, you know, it’s not just whether we win or lose. If a candidate loses some margin of victory, up or down, that’s an injury, too. And I don’t know what you thought about that. If, you know, how you thought that first argument went or that first discussion about that theory went.

Well, you know, it’s interesting. I think that’s one of these places where we really did benefit from having kind of three different ways to win the case. And I guess I would say it was on those competitive injury arguments that I think the other side had the biggest problem, because, you know, it was not an attractive message to say to the Supreme Court of the United States, well, the first thing you got to do is, you know, sort of handicap the election. And if this one isn’t particularly close, then there’s no standing. But if it’s close and you put in a couple of declarations that say Democrats vote this way and Republicans vote that way, that’ll be enough.

And I think for most of the justices, that just didn’t sound very appetizing to be candid. And this ideaand, you know, I mean, Congressman Bost was in the courtroom today, and I think he must have been bemused because the state essentially kept saying, well, Congressman Bost has won this, you know, office like, 10 times. He’s a great candidate. He was going to win no matter what, so he doesn’t have standing. And just to say that out loud sounds kind of goofy. And worse than goofy, it Sounds like it’s dragging the courts into having to kind of, you know, like, do political prognostication.

And I think that’s about the last thing that some of the justices want to be seen as doing. Yeah, I mean, if anything, you know, the last four to eight years, we know that pundits and prediction metrics are not always that reliable. And we joked with Paul and we’ve been joking internally. Bob Popper developed this idea that you had this sort of graph where he’s like a candidate has standing because he did well on his debate, and then suddenly he lost standing because he didn’t do so well in his debate and so on and so forth.

So, I mean, judges don’t want to be in a situation where they’re reading, you know, polling data and Real Clear Politics and the Cook Report to decide whether or not they should hear a case. I think you offered them two other very straightforward metrics for deciding whether or not to hear to find standing. I mean, the first one is obviously pocketbook injury is, you know, you want to talk about the, the example you gave about running in a race and how it affects, you know, it’s not just because you make it longer, isn’t just as simple as that because there’s different strategies for doing it.

Yeah, no, that’s a great point. And you know, I did have an opportunity to kind of elaborate on one of our answers because we’ve been arguing throughout the case that Congressman Bost has pocketbook injury. It’s going to cost him more. He’s got to write a couple of more paychecks to his campaign staff for those last couple of weeks. But the pointand this is something that we really forged together in our thinking as we worked through moot courts to get ready for the argument and talk through the case together. But, you know, kind of this insight that it’s not just what you spend in the last 14 days, it’s knowing that the election’s not going to end on election date all of a sudden affects how you spend money throughout the election.

And, you know, if mail in ballots can come in 14 days after, there are going to be more mail in ballots, a rational candidate is going to spend more time trying to appeal to mail in voters than in person voters, and it’s going to change the whole dynamic. And the analogy that we used is that, you know, if you have a half mile race and then you make it a mile race, that doesn’t just change how you run the last half mile, it changes how you run the first hundred yards and 200 yards. I mean, if, you know, you’re in a marathon and not in a sprint, you’re going to run the first hundred yards different.

So I think, you know, we were able to make some of those points, and I think some of the justices, you know, were kind of interested, but I think it resonated with them. Yeah, I think that’s right. I mean, you know, it’s just obvious if you’re spending money. I mean, generally, generally standing is not that complicated. If you. If a regulation costs you more money and it legitimately costs you more money, and you’re not just coming up and contriving a way to make it more expensive, you have standing. And for some reason, well, frankly, courts just hate election cases.

They just do. They have lifetime tenure. They don’t want to hear them. I don’t blame them. If I could get out of work, maybe I’d do that, too. But, you know, that’s their job. They take the lifetime appointment. They’ve got to make the difficult decisions. But, you know, they don’t want to hear election cases. And so in an ordinary sense, you know, you’re running a business and they force you to stay open for an extra two weeks, or they force you to close two weeks earlier. It will cost you a little extra money in staff time or whatever.

It would be an open and shut case. We would not be here. But because these questions are so disliked, to be honest with you, they don’t want to hear election cases. The judges do not want to be involved. Even the judges that are sympathetic don’t want to touch it. You know, I mean, and so we get these sort of, you know, I don’t know offhand, these strange cases. I mean, just Judge Scudder out of the 7th Circuit, the dissenting judge that agreed with us, basically said that this case is just a straightforward application of basic standing law, and it doesn’t need to be more complicated than it has been, has been made to be.

And here we are today, having to find three reasons why the court should follow, you know, what is obviously just sort of practical, a practical, common sense understanding. I think you used the term common sense repeatedly. If you have to run a race for two extra weeks, it’s a common sense and injury. And then the third injury that Paul spoke about today is this idea that just as a candidate, you have an interest in making sure the total vote count is accurate, and not this idea about whether or not you win more votes or you lose more votes.

You know, our theory is these votes are illegal. And it’s yet to be determined if the 7th Circuit in Illinois will agree with us or the Supreme Court will agree with us on that. But some courts have. And so these votes are illegal. And if the final tally is including illegal votes, under our theory, it’s an inaccurate vote count. And our clients have an interest in participating in a competition and in getting accurate results based on legal votes. And so Paul talked about that a little while. I thought the judges were somewhat interested in that. I think they, I think they had some problems with maybe sort of the blanket aspect of that.

I don’t know what your sense was. Yeah, I think they were wrestling with it. But like I said, I think in the end they saw some problems with it, but I think they saw more problems with the idea that it’s only the candidates in the close elections that have standing. And so, you know, to the extent it’s one of these things, you know, one of the most profound things I’ve ever heard about oral argument was what my mother said after my first Supreme Court argument. And I asked my mom, how did I do? And she said, well, you know, I thought you were getting beat up pretty bad till the other guy got up.

And, you know, I think it’s one of these things where, yeah, the justices definitely had some hard questions for us on does it really make sense to let somebody who’s going to win in a landslide come into court and complain that, you know, he’s going to get 98% of the vote instead of 97% of the vote? And, you know, I don’t think they love that aspect of the case. But then when the other side gets up there, boy, I think they really took on some water on the idea that, no, it’s, you know, 51 or 52%.

And then of course, Justice Gorsuch at one point pressed the other side, well, give me a number. Like, what’s your number? Is it 60%? Is it 55? Is it 30? And they wouldn’t give Justice Gorsuch number. So, I mean, Paul, in the preparation for the case Paul touched on, this is like, you know, generally when you’re trying to do standing, you try to keep it simple, right? You want to limit the things in federal court. You know, the judges are always open, worried about opening the floodgates in litigation, then that’s a, that’s a valid concern. And we don’t think that’s a real concern here because honestly, the floodgates are already open because voters apparently can challenge any rule.

But for some Reason candidates can’t. But when Paul sort of got back to us after initially looking at this, you know, he was sort of, you know, he liked the spending injury. He wasn’t so sure about the, you know, the competitive injury, and he really wasn’t sure about the accurate vote count tally injury. But the more you look at it, the more you realize the accurate vote count is a more simplistic, simple, objective metric. Right. And that, that even though it may be a little broader in terms of who can qualify, because you still have to worry about minor parties.

Right. We represent the Libertarian, you know, smaller parties. I mean, we represent the Libertarian Party of Mississippi in the merits on the 5th Circuit on the election day case. You know, they, you know, they don’t, you know, they obviously don’t do as well as the Democratic and Republican Party there, but, you know, they should have standing just like the other political parties. And this idea that, you know, you’re going to look at sort of like, okay, well, the, this person wins by a landslide, so maybe that means they do or don’t have standing or this person will never win by, never win.

And so maybe they do or don’t have standing. I mean, and you did a great job. You kept going back to, I think, what were those two cases? The Socialist Party of America. And what was the other? Anderson. Anderson. John Anderson. Some of us are old enough to remember John Anderson running for president as an independent. So. And those cases went all the way to the Supreme Court of the United States and they never once asked about standing. And you know, and you brought it up today for 135 years, really until 2020, I think about 2020, candidates were always, courts always heard, or the Supreme Court always heard cases involving candidate claims.

And you know, just because they heard it doesn’t mean they guarantee they have standing, but they never questioned it because it was sort of common sense that they have an interest. Right. And so, you know, it’s fine. You know, it’s an issue now. It’s been brought up. So it’s time for the court to answer that. One thing I liked in that is Justice Kagan brought up during the argument and she was talking about, well, why don’t the parties bring these suits? And in the Mississippi case, you have the RNC and you have the Libertarian Party. You know, why do we need candidates to bring these cases? Because parties aren’t dealing with this kind of standing dismissal.

And, and in fact, you know, she didn’t, she wasn’t aware of this, but actually the Republican Party got thrown out of Nevada on this very same issue. And so, you know, there’s a certain level of sort of ivory tower in the sense that I’m not trying to criticize her directly, but, you know, we’re having a lot of street fights at the lower levels trying to get into court to hear what really should just be fundamental, simple, narrow questions on election integrity. And we will spend 18 months litigating that and in this case, three and a half years until we go to the Supreme Court just to get a basic question answered as to why ballots can come in two weeks after election Day.

I thought your comment about, you know, your mother’s comments is right. I mean, you know, you always feel great when you file your brief, you know, because you haven’t heard the other side yet. And you feel good walking into court. And they came in a little hot today. I think they were open minded to everything we had to say, but they came in a little hot on you to begin with and then, you know, even hotter when the state got up there. So I don’t know if that was what you were expecting or what were you expecting when you went in there.

I mean, I expected it to be sort of a lively, you know, bench. This is, as you say, like, you know, standing is something that maybe to sort of non lawyers it just seems like just kind of a technicality. But the justices do get excited about it and they get excited about it in part, part because it does sort of, you know, ask the question, who gets into federal court to sort of litigate these cases? And as you were saying, you know, I think judges don’t like these electoral cases. But the one thing, and I think you could see this from almost all the justices today, the one thing they really don’t like is to have to try to decide these cases in the middle of a disputed election.

You know, the votes have come in, the votes are reasonably close and it’s, you know, it’s the late arriving votes or it’s the ballot in, you know, that gray ballot box over there that’s going to dictate the whole outcome of the election. I mean, that’s kind of a nightmare scenario for, you know, John Roberts and the Supreme Court of the United States and all of that. And I think one way to kind of think about what happened in 2020 is some courts, you know, didn’t want those kind of post election cases in their court and they sort of, you know, were willing to use almost any stick to beat a dog to get him out of them.

And some of the courts said no standing. Yeah. And then, you know, that’s sort of, you know, still sticking around five years later. And, you know, if in this case we could accomplish sort of getting the genie back in the bottle and making it straightforward again that, of course, candidates can challenge the rules in the election in which they’re running. And, and that, in a sense, is going to level all the playing fields so that minor party and major party candidates can bring challenges and we can get the rules of the election straight at the outset.

I mean, you know, Russ, you’re closer to the merits of the underlying issue. But, you know, my understanding is, you know, it’s about half and half, you know, about half the states are ending the election on election day and about half the states are running it for another two weeks. And there’s a pretty good argument that under federal law, there’s only one election day. But there’s an even better argument that all the candidates should get to know when the election ends, you know, almost before the election starts. That isn’t something that we should have to guess.

And by pouring out Congressman Bost on standing grounds, the 7th Circuit didn’t answer that question. Yeah. Hopefully the Supreme Court will answer that question sometime soon. But I think if we can accomplish, you know, putting that genie back in the bottle and making it easier for people to know what are the rules of the election kind of before people, like months before they cast their ballots, I think that’s a much better world than one where everything we don’t know and then the only way we could possibly find out is in kind of, you know, the next Bush v.

Gore. Yeah, I mean, you know, standing is something that ordinarily conservatives are very comfortable with because the idea of standing is it limits federal court’s ability to do things. It really should be going to the legislator. And it’s an idea of limiting court jurisdiction. But we believe in this case it’s gone too narrow. You know, when you talk about the 2020 election, you know, a lot of the pre election cases, you know, Trump and conservative activists like Judicial Watch did a very good job. We actually had a pretty high success rate in the pre election cases.

The post election cases is the real problem where, you know, judges didn’t want to do anything. Oddly enough, the 7th Circuit got standing correct in the post election context during the 2020 election. They agreed that the candidate had standing. They just disagreed. He won on the merits and threw the case out, which, frankly, is what courts should be doing when, you know, they shouldn’t let their Dislike for the merits, you know, muddle their analysis on standing. They should take the case and rule on it. And I think standing is such an easy way to sidestep difficult questions that it’s just, you know, it’s a brass ring they just got to reach for ultimately.

But, you know, you know, we brought this case way before the 2022 election. We knew that, you know, we liked our merits theory, but we thought that cleaning up standing was, you know, I think I told Paul earlier, it was part of what we do here. We do sort of the boring stuff that’s important for the election, integrity, the stuff that nobody else really has the resources to do or the sort of the time to commit or the resources to commit to it. You know, one thing we were talking about with Tom Fenton a little while ago is that the federal statutes that establish a national day of election are the very first election integrity statute ever invoked.

It’s the very first time that Congress ever used its power under the time, place and manner regulations. And so, you know, it really was sort of an innocuous election integrity provision. I mean, they didn’t use that term then, but it was to try to stop fraud. Because you had some states doing elections in March and some states doing elections in November, and they were worried about ballots and, you know, people not doing elections. They were worried that states could destroy the federal union by just not sending congressmen, just never holding elections. And so they mandated states to have their election on a designated time.

And so, you know, it’s something we took for granted for the longest time, because First Tuesday after the first Monday in November or First Tuesday. First Tuesday in November is National Election Day. And then, unfortunately, it’s been extended to a two week. You know, you had early voting, which the courts have approved. You know, that’s largely a dead issue at this point. But, you know, this idea that, like, okay, well, people don’t have to go to the poll sites and we’ll just do all mail balloting and we’ll have two extra weeks after Election Day. It’s, in our mind, it’s corrosive to the electoral process.

Right. I mean, like, you know, even candidates that win that I don’t like, I think they need to be clearly and legitimately elected. Right. I mean, there’s a problem when you have this question of the legitimate legitimacy of the election, even if it’s somebody you don’t want, and this idea that ballots are coming in late and there’s no, you know, no final number on election night. I mean, you Know, I always refer to it as the denominator. Like when the, when the boxes get closed on election night, you may not know what the decision is within that box, but you know, how many votes are in that box.

And, you know, this idea that votes can keep coming in is just very corrosive to duly elected officials. And you know, we’ve had some recent congressmen lose as a result of it. And so, you know, and I would venture to say that anybody that’s ever sort of lost an election based on the late arriving ballots, they, they are not going to accept the result in the same way as if they just come up short on election day. There’s just something different about, as you say, not knowing the denominator. You know, it’s sort of whether it’s true or not, there’s going to be a perception from that candidate and that candidate’s supporters that there was, you know, some funny business there.

And I think that, you know, that to me is, you know, part and parcel of this idea of, you know, it does make sense to have a firm ending point when you sort of know all the ballots are in. It might take a while to count them, but all the ballots are in. Yeah. And you know, just in 2024, I mean, we had at least, I know two congresspeople in California that lost as a result of late arriving ballots. I believe there was a senator in Wisconsin that lost as a result of late election ballots. But I don’t have the numbers off the top of my head.

But are those ballots that come in late, are they legitimate ballots? It’s hard to say. Probably, we don’t know. But I mean, you know, the ballots that are received by election day are timely and able to be counted.
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