A hearing on Wednesday in an election case captured in miniature the challenge for the Trump campaign as it gears up for what could become an all-out legal assault on presidential election results in key swing states: It’s easy enough to file a lawsuit claiming improprieties — in this case, that Pennsylvania had violated the law by allowing voters whose mail-in ballots were defective to correct them — but a lot harder to provide evidence of wrongdoing or a convincing legal argument. “I don’t understand how the integrity of the election was affected,” said U.S. District Judge Timothy Savage, something he repeated several times during the hearing. (However the judge rules, the case is unlikely to have a significant effect; only 93 ballots are at issue, a county election official said.)
“A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee,” said Justin Levitt, a professor at Loyola Law School in Los Angeles.
Levitt said judges by and large have ignored the noise of the race and the bluster of President Donald Trump’s Twitter feed. “They’ve actually demanded facts and haven’t been ruling on all-caps claims of fraud or suppression,” Levitt said. “They haven’t confused public relations with the predicate for litigation, and I would expect that to continue.”
If Levitt is right, that may augur poorly for the legal challenges to the presidential election. Either way, the number of cases is starting to rapidly increase. But lawsuits will do little good unless, as in the 2000 presidential election, the race winds up being so close that it comes down to a very thin margin of votes in one or more must-win states.
One of the few certainties is that we will not see the instant Bush v. Gore replay that Trump seems to have in mind. A few hours after voting ended, in a 2 a.m. speech that drew bipartisan condemnation for the president’s premature declaration that he had won the election, Trump baselessly described the ongoing ballot count as “a fraud on the American public.” “We’ll be going to the U.S. Supreme Court,” he told his supporters. “We want all voting to stop.” Trump is famously litigious, but he’s not a lawyer, and he seemed not to understand that apart from a small class of cases (largely territorial disputes between states), lawsuits don’t originate at the Supreme Court. The Trump campaign would have to file suit in a state or federal court and eventually appeal an adverse decision to the high court. Along the way, as the Pennsylvania court anecdote suggests, the Trump campaign would need to show evidence to back up his claim, and so far there’s no evidence of fraud in the ongoing ballot counts, which often run beyond election night. Tallying legitimate votes is not, despite the president’s tweeted claims, a form of fraud.
Once there’s a clearer picture of the outcome of the presidential election in key states like Pennsylvania, one party or the other may file lawsuits in state court challenging the legality of certain ballots or asking for a recount, a process described in ProPublica’s guide to election laws and lawsuits. Trump campaign officials told supporters on a conference call Wednesday that they believed they’re “in recount territory” in Wisconsin and Michigan, according to a report in The Washington Post. In a statement to The New York Times on Wednesday, Trump’s campaign manager, Bill Stepien, said the campaign planned to request a recount in Wisconsin “immediately.”
On Wednesday afternoon, the Trump campaign filed a lawsuit in Michigan state court asking that elections officials be ordered to stop opening mail-in ballots and tabulating votes until campaign officials are granted “meaningful access” to observe the process. The campaign’s statement about the suit did not explain in what way election officials had limited their access or why the campaign believes those limitations violate state law. The campaign also demanded “to review those ballots which were opened and counted while we did not have meaningful access” — a possible prelude to a hunt for technicalities that might allow the Trump team to challenge ballots cast for Democrats. The campaign made a similar request Wednesday in Pennsylvania state court.
Similar lawsuits filed by Republicans in Nevada and elsewhere have met with little success. In those lawsuits, the campaign has asked for essentially unfettered access to ballot canvassing locations. A judge who dismissed a similar lawsuit in Nevada observed that Trump campaign officials “seem to request unlimited access to all areas of the ballot counting area and observation of all information involved in the ballot counting process.” That was more than state law required, he wrote, and granting the request would slow the ballot count and impede social-distancing protocols. State election codes generally permit campaign officials to observe ballot canvassing, but not without reasonable limitations.
Trump campaign officials also said their legal team had or would challenge ballots in North Carolina and Georgia, traditional red states that remain too close to call.
It’s not likely the recount requests or ballot challenges, which are common in the wake of close elections, will make a difference in the outcome. “Recounts rarely change the vote totals very much,” said University of Kentucky law professor Joshua Douglas, and the same is true of challenges to the validity of ballots. That fact certainly won’t impede the filing of suits.
As of this moment, keeping in mind that the situation is developing by the hour, here are the other active lawsuits that could affect the election. Most of them are left over from among the more than 300 lawsuits filed before the election in 45 states, Puerto Rico and the District of Columbia, according to a database maintained by the Healthy Elections Project, a joint project of researchers at Stanford University and the Massachusetts Institute of Technology.
The election could come down to Pennsylvania, a crucial swing state where the outcome may not be known until the end of this week, and five lawsuits challenging the state’s election administration are currently pending in state and federal court.
In September, the Supreme Court of Pennsylvania ordered state election officials to accept mail-in ballots that arrive up to three days late, so long as they were either postmarked by Election Day or lacked a legible postmark. As in other states, the goal was to prevent mail delays from disenfranchising the historic number of Americans who, on account of the coronavirus pandemic, planned to vote by mail. Republicans appealed the ruling to the U.S. Supreme Court, which last week declined to rush a decision before the election.
Before the election, Trump derided the high court’s refusal to intervene as a “terrible decision.” “We’re going to go in the night of — as soon as that election’s over — we’re going in with our lawyers,” he told reporters gathered on a tarmac on Sunday ahead of a campaign rally in Hickory, North Carolina.
The president’s prediction was off by a day or so, but on Wednesday afternoon, his campaign asked to be allowed to intervene in the litigation (which was filed by Pennsylvania’s Republican party). The next move is up to the justices, who are still mulling whether to hear the case at all. Three justices — Samuel Alito, Neil Gorsuch and Clarence Thomas — indicated last week that the court might still take the case and void late ballots after the election, and Pennsylvania election officials have agreed to store late-arriving ballots separately, in case the high court orders them thrown out. The case’s fate may hinge on the views of the newest justice, Amy Coney Barrett, who didn’t participate in last week’s decision.
As noted, Republicans have sued Pennsylvania (there are actually two cases, one each in state and federal court), targeting efforts by state election officials to alert voters who submitted defective mail-in ballots — like failing to include a “secrecy envelope,” a requirement voting-rights advocates have worried could invalidate an unusually high volume of ballots — so they could either fix their error or submit a provisional ballot. Election officials have defended their practices as in line with state law. In the federal case, as noted, the judge expressed skepticism about the claim. An initial conference will be held Wednesday afternoon in the other case, which targets this practice statewide. Also Wednesday, the Trump campaign said it was filing a lawsuit in federal court in Pennsylvania over a decision it said election officials had made to extend the deadline for first-time voters to provide proof of identification.
In Nevada, late on Tuesday, the state’s Supreme Court rebuffed a last-minute effort by Republicans to temporarily block certain aspects of mail-in ballot processing in Clark County, a bastion of Democratic voters that is home to Las Vegas. That included the use of machines to speed the process of checking voter signatures against state records.
The court agreed to hear the case on an expedited basis, with a decision possible as early as next week. But its ruling expressed doubts about the lawsuit’s core claims. The plaintiffs “have not demonstrated a sufficient likelihood of success,” the state’s highest court wrote. The lower court had found their “allegations lacked evidentiary support, and their request for relief to this court is not supported by affidavit or record materials supporting many of the factual statements made therein.” The order went on to observe that the plaintiffs had also failed to identify “any mandatory statutory duty” that election officials “appear to have ignored,” and that they had failed to counter certain key conclusions of the district court.
In Minnesota, former Vice President Joe Biden has a sizable lead, but should that lead narrow, a ruling last week from a federal appeals court could have implications for the outcome in that state’s presidential vote. The court, in a 2-1 ruling along ideological lines, ordered state election officials to separate late-arriving ballots and indicated that it was likely to invalidate them when it ruled on the legality of a post-Election Day buffer period agreed to by state officials in light of the large number of mail-in ballots expected amid the coronavirus pandemic.
Texas, comfortably in Trump’s column, is the inverse of Minnesota. But a late effort by Republicans to throw out ballots cast via drive-thru voting in Harris County — home to Houston and a large chunk of the state’s Democratic electorate — remains live. A district court judge ruled against the plaintiffs, and on Monday a federal appeals court declined to block drive-thru voting on Election Day. The Republicans, however, have not ruled out seeking review by the full appeals court or taking their case to the U.S. Supreme Court. (The Texas Supreme Court, in a separate case, declined to block drive-thru voting.) Nevertheless, Harris County officials closed nine of 10 drive-thru polling locations on Tuesday to minimize the risk that large numbers of votes would get tossed if the plaintiffs ultimately prevailed.
Finally, North Carolina is not viewed as likely to decide the presidential election, but a tight Senate race there has major implications for control of the chamber come January. Last week, the Supreme Court declined to temporarily block a buffer period for late-arriving ballots, but the case is still working its way through the lower federal courts and could return to the high court. The three justices who expressed skepticism about Pennsylvania’s buffer period raised similar questions about the legality of North Carolina’s.
–Ian MacDougall, ProPublica
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Steve says
Yep these are thesamequalities that will be Donnies demise. His lack of facts to back up his mouth. His whole life has been spent suing or Lawsuits or hiding behind Attorneys. He lives in a bubble of his own making. As he steps out into the reality of it there will be no basis to his end game. Donnie is a pathetic little creature thats being given a big dose of the here and now. Deal with It.Good riddance
Raymond says
I’m a democrat and do see the concern for bogus ballots. My wife been dead for 7 years and she stills shows up as a registered voter and tried several times to have it removed. I believe she actually said she votes one year after she was deceased!
Susan Grine says
I feel sorry for all of you. You have voted to re-elect a man who is a criminal he did nothing about the virus nothing over 200,000 people have died that’s on his watch and that’s murder the Trump administration committed murder cuz they did not try to do anything to stop the pandemic I’d like to know how all of you who voted for him what do you see what good he has done I see no good at all so when he loses the election he’ll be coming to reside with you all have fun with him, he will be going to jail at that point.
Mary Fusco says
Sorry, but it wouldn’t matter what Trump said or did, people always have and always will do what they want to do. Trump did not murder anyone. Society is doing that to themselves. How many are yelling and screaming that their rights are being taken away. I don’t agree with most of what Trump is doing but America seems to hate him so much that they are willing to put someone like Biden in office. What exactly has Biden done for this Country in the 47 years he has been in politics? Both of them are unfit for the job. No matter how these votes pan out, we are screwed. Just my opinion. My daughter is a nurse treating covid patients. I saw her for the first time in 7 months last week and she lives in JAX. She took a test and was negative. I don’t need a government official to tell me what to do. I make my own decisions. I know that this virus is serious and I act accordingly.
Rxx says
Short answer: absolutely nothing. He has no proof anyone committed a crime. Lawsuits already thrown out in Michigan & PA. He’s just a sore loser.
marlee says
Trump is a LIAR,
He just accused that ALL Michigan poll workers were duplicating ballots.
How could anyone support his lies?
They are insulting Americans.
Shark says
It’s over for the liar in chief and time for the Southern District of New York to (LOCK HIM UP)
Realist says
What we are witnessing is the end of democracy America R.I.P.
john stove says
Mr. Trump could not be a bigger idiot….
Pre-election, he told all his followers to “not use” mail in ballots as they are unreliable, “we have rounded the corner on Covid-19 so go vote in person”.
Biden told us: “request a mail in ballot before the election so that you dont expose yourself to Covid-19”.
Election comes and when they start counting the mail in ballots they are heavily skewed to Biden…..and Trump claims that the elections is being “stolen” because so many mail in ballots are for Biden!!
Trumps’ reaction on national TV is priceless…..what a tool. Good riddance to him and his band of con artists and grifters.
Its time as Americans we stand together, roll up our sleeves and move forward.
Only Me says
The Republican Legislators decided they wanted all mail-in-ballots counted after the election, and that is exactly is what is being done now.
Just because it isn’t in Donald Trump’s favor who’s at fault for that? We knew he would make false accusations, he has put out false claims for the past four years why should this be any different.
So, far all judges have found no proof of any illegal activity in any of the states where Trump sees he is losing.
He now is going to try and cause a Civil War, is that how he wants to go down in the history books? I hope the Republican party can put some adult sense into him; he needs to stop with this immature nonsense.
If Trump causes a Civil War, who wins then no one. It isn’t safe for the people of our country no matter what side they are on nor is it safe for our hard-working officers in blue.
This is sad for the young children of all states in our country to witness such hate and unfound statements coming out of Donald Trump’s mouth.
History books are not going to be favorable to him. Is that what he really wants? It appears to be that way.
Uncursed says
He can sue all he wants . Only 4 times in previous history has an incumbent like Trump been defeated . Underdog Joe Biden did a fantastic job . Trump was impeached and now fired with the largest popular vote in the history of the elections for Biden who won the Electoral college with a mandate and the popular vote which Trump did not . Now the Trump virus might get wiped out as most businesses , Doctors won’t allow people without masks . My tax will not go up as Trump falsely claimed , only those that make over 400,000 will see a tax increase . My taxes for a ridiculous wall will not go up as Mexico was never to pay for it , we were . It goes on and on with the crookedest , most lying , self serving President ever . Thank the Blessed Mother for stepping on the head of the snake in the world once again !!!
Al says
I await your response in 4 years as to any “progress” this country may make going forward…. the media has become the real leader of this country, and that is not a good thing
John Stove says
I await 4 years to see if yet again the Rupblican Senate obstructs any programs offered by the Democrats. Just like they did during the Obama years. Republicans are the party of “NO”
Call me Ishmael says
There’s already been progress made. The SOB has pretty much kept his mouth shut for almost 24 hours!
Booyah! says
It’s old, tired and old. Your comments blaming the media. What do you think your fav news station fox is? The media even if it is actually merely entertainment and not real journalism. Stop being like Donnie boy and blaming everyone and everything else. Trump is morally bankrupt and Biden/Harris have their work cut out for them cleaning the enormous orange dump trump took on American democracy. President elect Bided and VP Harris will take care of it, don’t worry. Welcome back America!!! Woot woot!🇺🇸🇺🇸🇺🇸♥️🤍💙
Steve says
Rid of Donnie is a huge start. DEAL WITH IT. He LOST
Percy's mother says
This country has become a laughing stock to the world, and has been so for many decades. Always pontificating and bullying but failing to note and correct its own weaknesses.
At this point in time, nothing more than a third-world banana republic, which can’t even hold a legitimate election.
The illegitimate dictator in Venezuela, Nicolas Maduro, is ridiculing and laughing openly about this (another) bungled election as are other world leaders.
Steve says
I dont know what Election you were watching but seems the System worked about as wellas it ever has and with a record turnout. I am proud of us all coming out to Vote. Just because it didnt turn out right in your mind doent mean its illegitimate. Counted signed sealed delivered. Deal with it
Outsider says
Until we have a reliable method of identifying and cross-checking every voter and his/her ability to vote then elections will never be viewed as legitimate by me. It is the Democrats who oppose voter ID laws at every turn. Voter fraud does occur and there is video evidence, but just like Biden’s influence selling it is never reported in the media that the left watches. That being said I think we should all demand a system where every legitimate voter can vote once. I am not a fan of national ID’s, but a national voter ID card with a unique identifier requiring voters to keep their important information such as addresses up to date could virtually guarantee the integrity of elections. This card could be used to vote in person or request an absentee ballot. It would eliminate 99% of questions of eligibility and voting multiple times. If Democrats are truly concerned about fair elections then you would surely support some form of voter identification.
joe says
“Voter fraud does occur and there is video evidence,”… care to post any?
This has been investigated over and over and no evidence of ANY kind of systemic fraud has been found. Even in recent days, it was a big buzz on some Facebook pages that poll workers were captured on video “filling in blank ballots!!! One poster even said “this lady’s been at it for over an hour”!!- In reality, it was a deceptively shot video taken at close range showing her indeed filling out blank ballots. WHY? Because they were ballots damaged enough that they could not properly be scanned and the LAW REQUIRED that their information be manually transferred to a blank ballot while being observed by representatives of both campaigns. So much for “fraud”.
There was an article in the Washington Post written by a woman who actually counted votes – as is common, the security measures and observation, checking, and general security where ballots are tabulated makes it literally impossible to tamper with ballots. At least in her case, the people didn’t even know ahead of time who they would be working with or what task they would be performing.
The idea that there is massive, systemic fraud is simply not true.
Booyah! says
But you had zero qualms about trump illegally stealing the election in 2016 with help of fake news and the Russians. Oh but “the emails! Pizzagate!” The ramblings of QAnon lying conspiracies you so readily gobble up. Trump embracing leader of Venezuela doing nothing about genocide in Syria. Complimenting dictators, trying to be a dictator himself. Better be careful, your hypocrisy is showing.
State facts not rumors, lies and sour grapes. Wah wah. You lost. Thank God the devil will move out of the White House soon.
joe says
Today’s “voter fraud” update:
“A Pennsylvania postal worker whose claims have been cited by top Republicans as potential evidence of widespread voting irregularities admitted to U.S. Postal Service investigators that he fabricated the allegations.”
https://www.washingtonpost.com/investigations/postal-worker-fabricated-ballot-pennsylvania/2020/11/10/99269a7c-2364-11eb-8599-406466ad1b8e_story.html
Our founders were convinced that an informed citizenry was essential – sad that so much outright falsity is so widely believed.
joe says
More “voter fraud” – (Sorry, moderators – I would have posted this in my last comment, but just found it now)
BREAKING NEWS: Erie, Pa. #USPS whistleblower completely RECANTED his allegations of a supervisor tampering with mail-in ballots after being questioned by investigators, according to IG.”
Any kind of systemic “voter fraud” or “ballot tampering” simply does not exist…