Laches and the Pennsylvania election litigation

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An amicus brief was filed earlier this week in the Pennsylvania election litigation by Erwin Chemerinsky, Marin Levy, Leah Litman, Portia Pedro, and Rick Swedloff. I'm not competent to assess the Purcell-principle arguments, but the laches arguments are excellent.

Here's a key paragraph:

Laches has particular force in the context of election challenges. Indeed, laches often bars equitable relief in actions brought by tardy plaintiffs prior to the relevant election. See Navarro v. Neal, 904 F. Supp. 2d 812, 816-817 (N.D. Ill. 2012) (collecting cases); see also Stein v. Boockvar, Civ. No. 16-6287, 2020 WL 2063470, at *19 (E.D. Pa. Apr. 29, 2020). And for good reason. Plaintiffs who sleep on their rights only to bring last-minute challenges create "a situation in which any remedial order would throw the state's preparations for the election into turmoil." Nader v. Keith, 385 F.3d 729, 736 (7th Cir. 2004). By strictly applying laches in the election setting, courts properly encourage parties to litigate their claims at the earliest possible time, resulting in the least disruption to the election and, ultimately, the voters. See Richard L. Hasen, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown, 62 Wash. & Lee L. Rev. 937, 998 (2005) ("Courts should see it as in the public interest in election law cases to aggressively apply laches so as to prevent litigants from securing options over election administration problems.").

The brief is here.

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  1. I’m guessing that these amici would find laches a much less compelling doctrine if the election results had showed a Republican as the apparent winner.

    1. You didn’t read the brief and don’t know what the argument is, do you?

    2. So you’re saying that a legal argument that aligns with the lawyers’ political preferences is always invalid?

      Or what?

      1. I will say something different. These cases are massively overlawyered. Law professors could use their talent to, say, help out underprivileged people. Instead, they are wasting time on a case where their brief will have no effect on the outcome.

  2. “Donald Trump’s campaign now seeks the extraordinary remedy of having a federal court order Pennsylvania to ignore the presidential preference of many—or all—of its seven million votes that the Commonwealth itself has deemed lawfully cast.”

    “Or all”? Hyperbole much? I don’t see how this could be a reasonable statement, unless Trump’s campaign were urging that the electors be given to somebody other than himself, Biden, or Jorgensen.

    1. Being unreasonable oneself is a small price to pay for proving in court that Donald Trump is unreasonable!

      It is hilarious that so many of the people who insisted that the Russians stole the election in 2016, and that Donald Trump (or his campaign) conspired with them to do so, now insist that it is impossible for trusted insiders to help steal an election that had so many extreme changes compared to previous one, and that Donald Trump (and his campaign) only suggest otherwise in bad faith. They also insist that a case like the rural Michigan county where 6000 votes were wrongly counted for Biden was an innocent mistake by a single person, and in spite of it only being detected because the results were obviously insane, significantly incorrect counts could not possibly be replicated or imitated anywhere else in the country.

      1. “ and that Donald Trump (and his campaign) only suggest otherwise in bad faith.”

        Great point.

        After all, Donald J. Trump has a long reputation for honesty and probity and business and politics.

        And his attorneys, during this process, have continually amazed the courts with their candor and evidence.

      2. It is hilarious that so many of the people who insisted that the Russians stole the election in 2016, and that Donald Trump (or his campaign) conspired with them to do so,

        The claim is that the Russians interfered in the election, not that they worked with Hugo Chavez to change votes that were cast.

        They also insist that a case like the rural Michigan county where 6000 votes were wrongly counted for Biden

        No votes were wrongly “counted for” Biden. It was a reporting error, quickly caught.

        was an innocent mistake

        It seems unlikely that a heavily Republican county decided to deliberately steal votes for Biden, except not by actually changing votes but by temporarily misreporting the results.

        that Donald Trump (and his campaign) only suggest otherwise in bad faith.

        Um, apparently you slept through the past 5½ years; every single thing Donald Trump says is in bad faith.

        significantly incorrect counts could not possibly be replicated or imitated anywhere else in the country.

        Space aliens “could” have replaced Biden and Trump with lizard clones. But the burden is on someone making a claim of something happening to produce evidence that it happened, not to say that it “could” happen.

        1. If you ever want to see proof that someone is arguing in bad faith, just look for lines like this one:

          every single thing Donald Trump says is in bad faith.

          1. Notice the lack of counterexamples.

    2. If you are arguing for an election to be determined regardless of the votes, then you are disregarding the preferences of all of the voters, Brett.

      1. Ignoring, of course, that the legal argument for doing so is that the election was so compromised by illegalities that It isn’t actually known who really won. That Biden May only appear to be the winner due to illegally counted votes.

        1. That’s not the legal argument.

          The legal argument is … and I wish I was making this up … something something the remedy is that Trump should win!

          One of the remedies that the campaign requested … again, not making this up, was that the Trump campaign would be allowed to determine which votes were valid and which ones weren’t.

          The scary / laughable thing is that they the BS that they are feeding to the rubes (like you) is even worse, but the legal arguments they are stating are, by far, some of the worst I have ever seen.

          And I am including tax protester filings.

          1. Their argument clearly lacks merit, but I think it’s more coherent than that.

            In the case being appealed, two voters in Republican-leaning counties had their ballots thrown out for minor irregularities (e.g. no printed name in addition to signature) without being contacted and given a chance to correct them. They are suing several democratic-leaning counties who offered voters a chance to correct minor ballot errors. Their argument is that any difference in ballot procedures between counties violates the Equal Protection Clause and hence the entire state, or at least the counties offering corrections, shoild have all ballots theown out.

            Judge Bann very reasonably asked them why they didn’t sue their own counties to let them correct their ballots rather than other counties, who don’t seem to have caused them any injury. He also said that, assuming the plaintiffs have standing, ordinarily differences in vote procedures between election districts are subject only to rational basis review, and this easily passes.

            Finally, he said the Trump Campaign has no standing to sue over election procedures. “Competitive standing” only applies to contesting putting the name of a cometitor candidate on the ballot, not to procedures for counting votes.

            1. If the voters who were not offered a chance to correct accepted that because they realize they failed to meet the minimum requirements to cast a valid vote and therefore accepted that their votes were invalidates because of a sense of deference to the rules/law… who else would they sue except for counties who, according to these voters who had invalid ballots rightly (they presumably believe) tossed, did not follow the rules? The argument suggesting they sue their county is essentially that they ask their county “Hey… can I cheat, too?” That seems a really poor argument for a judge to suggest.

              1. Setting aside that it just doesn’t work that way in general — you can’t say, “I didn’t want to do X, so it’s unfair that you let someone else do X” — there was nothing “cheating” about it. No law at all forbids counties from allowing people to cure, and before the election, the SoS expressly said that counties could allow people to cure.

    3. What they meant was that Trump wants the courts to ignore the preference of all the voters and allow the state legislator to choose the electors.

      1. How about if the state legislature chooses electors for the candidate who won the most votes only counting locations where the local election officials can show they followed the legal procedures put in place to preserve the integrity of the vote?

        1. Nope. That would give too much leeway for local election officials to disenfranchise their own people by not cooperating. Also what threshold are we using, will minor errors lead to the entire county being disenfranchised? It must be the responsibility of the ones claiming fraud to produce the proof.

    4. Brett, are you familiar with the doctrine of laches? When and where did you get your legal training, if any?

  3. Of course, it isn’t actually known that the moon landing happened; maybe it was a hoax. Or that Elvis is really dead; maybe he and JFK are hiding out in Argentina.

    Brett. There are few things in life known to a 100 percent certainty. But most reasonable people who aren’t into conspiracy theories are satisfied that Neil Armstrong walked on the moon, Elvis and JFK are dead and buried, and Biden won Pennsylvania by a comfortable margin. Methinks you’ve been watching too many X Files reruns.

    1. Well, look: If you’re right, Trump will clearly lose. The only way he wins this is if he can establish that enough ballots were illegally counted that you can’t be sure who actually won the count of legal ballots. AND if the judge actually gives a damn about it, of course.

      And if he can establish that, all this talk of Biden having won PA is just guessing.

      I think he will not succeed even if he has the proof, because the judiciary will take one look at the only possible remedy, and chicken out. I think the legal fight was actually lost before the election, when the Supreme Court refused to take the challenge to the PA supreme court ordering election laws violated.

      But it’s important to honestly recognize that Trump’s argument here is NOT ‘I win, because reasons.’ That’s just a refusal to engage with the other side’s arguments.

      I think at this point the closest Trump gets to winning is proving massive illegality, an putting an asterisk on Biden’s ‘win’. But that IS worth doing, if it gets us some genuine election reform, makes our elections as secure as your average third world country’s.

      1. Brett,

        You’re the mark. You get that, right?

        Trump had all the levers of power. His own administration and state election officials said this was the most secure and orderly election in history.

        Trump engaged in a concerted effort to undermine the election just in case he lost. Which he did. By a much larger margin than he won the prior won. And I will reiterate (because it’s necessary) that he got thumped in the popular vote.

        There is no widespread discrepancy between the state-level elections and Trump (and the GOP did okay). Trump overperformed his polls. He still lost – quite soundly.

        You don’t see Democrats refusing to acknowledge reality in places where things were off – for example, the massive swing in Miami-Dade (compare Broward). Instead, they look for rational explanations (male Latinos, “socialism”) and look for ways to do better.

        At some point you either are part of a cult of personality or you aren’t.

        1. Right. If anyone has any reason to think something’s amiss, it’s this nation’s liberals, who were once again led to believe that this election would be a cakewalk, that another “blue wave” would sweep out vulnerable Republican senators, that Texas and Florida would swing blue, etc. We have a lot more evidence to believe that there was some kind of systemic fraud favoring Republicans, than Republicans do in thinking that Trump somehow was cheated out of winning the presidency (while down-ballot candidates were not).

          The same thing happened in 2016, with Hillary. Hillary conceded the night of the election. Despite being shocked by the outcome, we didn’t follow up with weeks of lawsuits and claims of fraud. Leftists who spouted conspiracy theories were laughed off as irrelevant – if not blamed outright for her loss.

          What brainless partisans like Brett will ultimately need to understand is that Trump lost for the same reason that Hillary lost. He was a bad candidate who ran a bad campaign. The fact that voters were ready to throw out Trump but were not ready to embrace a full-on Democratic agenda in down-ballot races should come as a significant repudiation of Trumpism. Voters apparently wanted a return to normalcy, not a sharp left turn towards “socialism.” That is the lesson they need to take away from this election.

          1. Except that it’s this nation’s ‘liberals’ who were going mad changing the rules at the last minute, throwing election observers out, waiving ballot security measures.

            The conservatives were saying, “Let’s just hold an ordinary election, the same as always. Voting isn’t any more dangerous than shopping for groceries, and the grocery stores are open!”

            I personally think Trump lost, (And I’ve pretty much concluded that, barring some extraordinary evidence.) because even though he ran a really good campaign, enough to increase his vote total by about 10 million votes from four years ago, it just barely wan’t enough to overcome the headwind of having the entire MSM and major social media platforms all in for his opponent.

            I doubt it would have been possible to have run a good enough campaign to have overcome that, though you can always imagine an alternate candidate who it would have been harder to weaponize the media against. Too bad for the Republicans that alternate candidate IS just imaginary.

            If they don’t do something about the left controlling almost all media platforms, the future does not look good for the GOP.

            1. it just barely wan’t enough to overcome the headwind of having the entire MSM and major social media platforms all in for his opponent.

              Which is

              a) Bullshit, and

              b) A desperate attempt to absolve Trump of responsibility for his defeat, because Trump Can Do No Wrong, per Brett.

      2. You throw around lots of “ifs”, but those IF statements will return FALSE, and thus proceed to the ELSE condition, which is that Biden won cleanly.

        1. And Brett repeatedly concedes this. Not sure what you think you are adding. Brett has repeatedly stated (I have seen it in this thread and others… even though for brevity and sanity he doesn’t repeat it in every single post which gives whose who wish to selectively pick which posts to consider a faulty view that he things that there definitively was corruption) that he wants to run the check on the IF statement to discern what the actual variables say about which THEN statement is to follow. If athen b, or is this a case of if c then d? We can not know which is the “right” statement if we do not look to see if it is A or C that is real. It very likely is Buden got more legal votes and it will follow that Biden wins. But if we do not observe that occurring then we can not say definitively that it occurred. Right now everyone is simply ASSUMING it occured based on the fact that it LIKELY occurred. But those are very different things.

          1. he wants to run the check on the IF statement to discern what the actual variables say about which THEN statement is to follow.

            How does he propose to do this, and why should anyone agree? It’s not as if there weren’t procedures in place to check votes. Plus, Georgia even did a statewide hand recount and there is a partial recount going on in Wisconsin. What he wants, as you describe it, is some sort of free-floating right to check on the accuracy of the election, based on evidence-free claims, because he didn’t like some things that happened.

            Well, too bad. It’s a lot of work, and you need a very good reason to insist it be done. And so far, the allegations haven’t risen anywhere near the level required – they haven’t risen at all, in fact. Let’s not overlook the fact that Trump has had more than 30 cases dismissed, so it’s not as if the “evidence” is being suppressed. Rather, it’s being laughed at. If Brett has more let him get in touch with the Trump campaign.

            1. The reason is the legitimacy of the state… kind of a big deal. But I agree there needs to be evidence to justify upsetting the apple cart. But the left has decried the process, not just the lack of evidence (which I agree there isn’t much, if any, of).

              The moment Trump and his supporters raised concerns, the left dismissed them out of hand. “Disproven!” was the battle cry… yet no one offered an argument that things had been disproved. It was stated as fact. And it was stated as fact immediately in response to the claims of malfeasance… too quickly for there to be any sort of review to “disprove” things. Some things have in fact been disproved. Many things. But the left assumed this without reason from the word go… that makes them less than trustworthy. (The trustworthiness of Trump has no bearing on this, it is an unrelated piece of information often used as a form of deflection and is not an argument of defense).

              And what he presumably wants (and to be fair… I am speaking on behalf of a stranger and very well could be wrong on his intent) is to have the courts run their course absent the public pressure by the left and media establishment to NOT have the courts involved (because that is often the attitude the left takes… that there is no reason to do ANYTHING other than simply accept that Biden won) and to have Trump and his supporters simply “shut up and sit down… your betters have arrived.”

              1. The burden is not on ¨the left¨ to disprove Trump´s claims. The burden is on the Trump team to prove them.

          2. May I respectfully recommend one of Bryan Garner’s books?

          3. The day after the election, it could have been fair to ask to wait for more information to make a judgement, but now, three weeks later, that time has passed. There have been investigations by many groups, some highly partisan, and none have turned up any evidence. So we can now say that the election was clean.

      3. Brett, it wouldn’t even be an asterisk on Biden’s win because Biden wins even without Pennsylvania.

        1. Which is a great reason for them to throw out the ballots that four of the PA Supreme Court justices said were ruined by the illegal handling and orders of the PA SoS.
          I mean, it won’t change the outcome, but it goes a long way towards restoring confidence in the elections by imposing consequences for violating the law.

          Instead we get three justices that claim that “Shall” means “if they feel like it” and one that says “But we’ll only start enforcing these laws next election”.

      4. Brett: You write that Trump is not likely to prevail “even if he has the proof.” Isn’t the fact that there is no proof exactly why he and his legal team continue to get laughed out of court? If they — or you — had the proof, wouldn’t we have seen it by now? Guiliani, Ellis, and Powell have repeatedly promised proof, but we’re still waiting. Isn’t it time for someone to acknowledge that the emperor has no clothes?

      5. I think at this point the closest Trump gets to winning is proving massive illegality,

        But he hasn’t done that. He hasn’t come close. Ar eall these 35 or so judges part of some anti-Trump conspiracy?

        And your insistence that the PA court ordered election laws violated, because you don’t like their decision, is telling. You won’t face reality.

        It is not a violation of law to say that, “under these conditions the statute violates the state Constitution.”

      6. But it’s important to honestly recognize that Trump’s argument here is NOT ‘I win, because reasons.’ That’s just a refusal to engage with the other side’s arguments.

        Why is the onus on those of us who disagree with you, when you yourself don’t even seem to know “your side”‘s own arguments?

        You keep insisting that no one really knows the correct outcome of the Pennsylvania election. But that’s not what the Trump campaign is arguing in court. It is arguing that the voting system in Pennsylvania somehow violated the Equal Protection Clause, and making various spurious arguments and procedural maneuvers to get there, and claiming that this violation means that the entire election’s outcome should be tossed. The argument is silly and incoherent, and the sought-for remedy wildly out of proportion to the putative harm.

        And even if you unwind the clock to the decision by the Supreme Court not to intervene in the Pennsylvania Supreme Court’s resolution of a matter of state election law, you don’t quite get to the point where you can claim that no one knows what the outcome for Biden really was. What you’re really talking about, then, is that we don’t precisely know what the outcome of the election would have been, were we to decide to toss the otherwise-valid votes of thousands of Pennsylvania voters because they were mailed too late or were not postmarked – i.e., the famous “illegal votes.” Not a question of fraud, but a question of manipulating election rules ex post facto so as to confuse and disenfranchise absentee voters.

        So you’re not only confused about what your own candidate is arguing in court, you’re lying about what it is you yourself believe. You don’t give a shit about “election reform” or insecurity. All of your complaints are about a perfectly secure election, where you feel the rules were “illegally” altered to permit more legal, registered citizens’ votes to count. The only thing you really care about, in the end, is for Trump to win, voters’ will be damned, or – short of that – to cast the presidency of a man who won 80 million votes as somehow “illegitimate.”

        You’re a traitor and a scoundrel.

      7. But it’s important to honestly recognize that Trump’s argument here is NOT ‘I win, because reasons.’ That’s just a refusal to engage with the other side’s arguments.

        Trump’s argument is worse than “I win, because reasons.” It’s “I win, because.” Baghdad Bob was operating with more sincerity than Trump.

    2. Brett. There are few things in life known to a 100 percent certainty.

      You’re talking to someone who says that we can’t know Obama was born in Hawaii because we weren’t in the delivery room at the hospital at the time.

      1. Freedom of conscience means you don’t decide the level of proof others need to accept something as likely true.

        And your response is likely “ignore fools.” Fine… you can do that and would be well within your right to do so. And there are lots of reasons for doing it.

        However… if you want a system that operates legitimately then it requires consent of the governed. And like above, you don’t get to decide what is required by others to obtain their consent. But if they tell you what is required, and you seek to maintain the legitimacy of the system, then there is a pragmatic argument that you suffer those who you think fools if only to placate them and to obtain peaceful relationships with them. They are your neighbors after all. Asking to let them test the validity of something doesn’t hurt you. Telling them they can’t do that but must accept your decree from on high, however, only increases animosity.

        And yes… both sides or whatever. Don’t care. What I am saying still holds true. Humility among the winners is not a bad thing. And it doesn’t risk your winning if you did in fact win. So what reason is there to fight against this other than disdain and contempt for others? Seems like bad motivations to me.

        1. if you want a system that operates legitimately then it requires consent of the governed. And like above, you don’t get to decide what is required by others to obtain their consent. But if they tell you what is required, and you seek to maintain the legitimacy of the system, then there is a pragmatic argument that you suffer those who you think fools if only to placate them and to obtain peaceful relationships with them. They are your neighbors after all. Asking to let them test the validity of something doesn’t hurt you. Telling them they can’t do that but must accept your decree from on high, however, only increases animosity.

          By this principle the requests are endless, and need no substantiation. So long as Brett, or someone, suspects, without good reason, that mischief is afoot he is, by your argument, allowed to seek audit after audit, recount after recount.

          Because that’s what he’s asking for. Is it necessary to repeat that Trump has gone into court after court with various election-related claims? They’ve been rejected, for a variety of good reasons.

          The trouble here is that the Trump cult’s media arms are spreading all sorts of nonsense – and the cultists believe it.

          1. Not endless… there are courts, they serve a purpose. The left has quickly decried any actions the Trump campaign has taken. There is literally zero reason to do this. Let the Trump team do and say what they want (within the law). Let the courts do their thing. And don’t rush the legal process which won’t declare anyone the Pres Elect until December anyhow. Precedent is not argument for correct… if it were all liberals would be conservatives philosophically. Let Trump prove himself wrong publicly and officially rather than declaring him wrong from the news desk (which has been happening for 4 years, and not always accurately). There is ZERO harm, only gain, to this.

            1. In order to get before a court, a plaintiff must file a complaint averring facts that, if proven, would entitle him to relief. Trump´s team has been failing that test in dozens of lawsuits.

  4. Personally, I’m amazed both (1) that so many vote-counting devices were able to count votes for president but were unable to simultaneously count votes, cast on the same page, for representatives and (2) that so many people were willing to vote for either president or representative but not both.

    Certainly, a good fraction of voters will skip a portion of the ballot questions: this is to be expected. However, the number of whole ballots counted should, in every precinct, be equal for president and representative, even if a vote for either president or representative is omitted.

    California, New York, and Virginia make sufficient details available for analysis and are states where the presidential election outcome was pre-ordained, so these three states are perfect subjects for analysis. I do have my doubts about the accuracy of the process based upon the total counts… and upon the fact that some jurisdictions have yet to “complete the tally” of votes for representative yet have somehow magically been able to “complete the tally” of votes for president. [Sarcasm: are we putting magic half-paper into the Scantron machines, using #3 lead to fill the bubbles on the bottom part of some pages, or what?]

    And for argument… voter registration fraud is provable, albeit late (post-election), while anonymous voting fraud is seldom provable at any point. Any laches argument related to secret-ballot voting results is absurd in part because the information necessary to evaluate the accuracy of an election is only available post-election and even then not in a timely manner.

    1. This case is not about voter fraud, it is about the election procedures and rules, which were known a head of time and thus subject to laches.

    2. “California, New York, and Virginia make sufficient details available for analysis and are states where the presidential election outcome was pre-ordained, so these three states are perfect subjects for analysis.“

      Let me get this straight. You honestly think that CA, NY, and VA needed to be rigged in any manner whatsoever?

      Just to be clear. You think *California’s* electoral votes might have gone for Trump had there not been a massive conspiracy that “pre#ordained” the results via external manipulation? So that a shadowy cabal would take the risk of exposure there? All that work and risk for *California*?

      Instead of just letting California vote like it *always* does? Seriously? Who on God’s green earth would bother spending time and money (and risk of exposure) rigging the presidential vote in *California*?!? (Same for NY and a lesser extent VA. But CA. Think about that for 0.22 seconds.)

      You may be the least convincing conspiracy theorist I’ve run across in quite some time.

  5. Laches, laches, all fall down

  6. Breaking: Third Circuit rejects Trump campaign’s Pennsylvania appeal, and in blistering terms:

    “Charges require specific allegations and then proof. We have neither here,” wrote the judge, who is a Trump appointee.

    1. Opinion by Bibas. I knew Judge (then Professor) Bibas when I was in law school. Conservative, Fed.Soc., intellectually rigorous, fair to all. (He provided me with good advice on securing a clerkship, too.) If anyone is so desperate and/or blind and or brain-dead as to claim he’s part of a lib-y-rul conspiracy to steal the election, I may die of laughter.

      1. I mean, it’s really just another win, on the way to the Supreme Court.

        1. Yes, “onwards to the S.Ct.!” is a great line to feed the rubes, as Trump tries to maximize dollar extraction from the gullible.

          I predict the S.Ct. will quickly deny cert on this appeal. There’s nothing they would add to the opinions from Brann (conservative, Federalist Society) and Bibas (conservative, Federalist Society).

          1. Oh ya the SC won’t touch this.

    2. Third Circuit order denying injunction pending appeal:

      https://www2.ca3.uscourts.gov/opinarch/203371np.pdf

      I’m not an appellate lawyer, so I will defer to experts. But it’s not even clear to me that this order is automatically appealable, since it’s not a final order. So the Trump Campaign would need to make an interlocutory appeal, which has additional hurdles.

  7. IANAL question regarding the brief – is, “Leading news organizations declared Joseph Biden the winner of the presidential election in Pennsylvania” legally pertinent? I’m imagining any judge thinking along the lines of, “Well, it’s a close call but if Fox News says Biden won then who am I to disagree?”

    1. When considering any piece of evidence, there’s more than “is it true or not?”. There’s also “is it relevant? What is is relevant to?”

      If the observation “newspapers announced Joe Biden won” is offered for the proposition that “the Plaintiffs knew because *everybody* in the world knew, yet Plaintiffs still sat on their hands” … then yes it is legally pertinent to laches, i.e. to the question of “did Plaintiffs sit on their hands well after they should have known it was time to file?”

    2. The news may have called the election,but it is trivial for anyone to look at the numbers and figure out if Biden or Trump has more votes in each state.

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