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Trump's election 'legal challenges' won't change 2020 results. Can he win by losing?

The weaknesses across these cases illustrate how the Trump campaign isn’t using the legal process; it’s abusing it.
Image: U.S. President Trump speaks to reporters about the 2020 presidential election at the White House in Washington
President Trump spoke about the election results at the White House last Thursday, Nov. 5.Carlos Barria / Reuters

Even as a growing number of congressional Republicans concede that former Vice President Joe Biden won the presidential election, others refuse to do so publicly, insisting, as Sen. Lindsey Graham has, that we hold off “until the legal challenges are decided.” That talking point is a convenient deflection, but it’s also willfully misleading insofar as it implies that, much as it did in 2000, the legal process might affect the election’s outcome.

That talking point is a convenient deflection, but it’s also willfully misleading.

Not only is the factual scenario materially different from 2000 (when the whole election came down to a single state in which the candidates ended up 537 votes apart), but the lawsuits the Trump campaign has filed thus far are, with one exception, embarrassingly thin or entirely picayune. One of the campaign’s sole “victories,” for instance, was a Pennsylvania state court ruling requiring observers to be allowed 6 feet from the vote counters, rather than 10 feet. No vote tallies were affected in the process — and even that order could still be overturned by Pennsylvania’s Supreme Court.

Even the one claim with potentially substantive legs — that Pennsylvania should not count certain late-arriving mail-in ballots — can’t possibly have an impact on the election given the size of Biden’s lead there.

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We’re not the first to point out how weak these claims are, and we won’t be the last. Our goal in this piece, rather, is to drive home exactly what’s wrong with these lawsuits. The weaknesses across these cases illustrate how the Trump campaign isn’t using the legal process; it’s abusing it. Whatever that may say about the lawyers involved in such cases, it should be a strong message to the courts — to act quickly not only to deny the “emergency” relief the Trump campaign seeks, but also, where appropriate, to dismiss these cases at their outset. The judicial system should not allow the campaign to win even by losing.

In particular, we’ve focused on five common flaws in these cases: The overreliance on hearsay; the wild speculation in lieu of actual evidence; the reliance upon “witnesses” or putative victims with serious credibility problems; the reframing (or refiling) of already-disproven or denied claims; and, perhaps most important, the extent to which most of these claims would not actually change the result.

The first common problem in these lawsuits is their reliance on hearsay — on individuals making allegations not about what they saw, but about what (often unnamed) others told them that they had seen. Thus, in a case brought in the Michigan Court of Claims last week, the Trump campaign and a sole elector, Erik Ostergren, lost their bid to stop the counting of all Michigan absentee ballots until an “election inspector” from each party was allowed to observe each absentee voter counting board.

While the court found the claims defective on several fronts, chief among them was a glaring lack of evidence. Ostergren himself alleged that he had been “excluded from the counting board” but never specified “when, where, or by whom,” much less “why the alleged exclusion occurred.” The plaintiffs later supplemented Ostergren’s allegations with a sworn statement from Jessica Connarn, a poll watcher, who said she witnessed voter fraud. As she was observing, Connarn stated, an unnamed poll worker informed her that she was “being told by other hired poll workers at her table to change the date the ballot was received when entering ballots into the computer” and that the poll worker later handed her a sticky note with instructions to change the “receive date.” But neither the conversation nor the note evinced Connarn’s firsthand knowledge of the alleged fraud —and her affidavit was thrown out as quintessential hearsay.

Related to, but distinct from, the widespread reliance on hearsay is the campaign’s pattern of wild speculation — allegations in complaints that have no reasonable basis in fact, and that sound more like something the president would tweet. For instance, in another short-lived suit last week, the Trump campaign and the Georgia Republican Party demanded that one county’s board of elections “collect, secure, and safely store all absentee ballots received ... after 7:00 P.M. on Election Day.” Such ballots would be invalid under Georgia law. But nowhere did Trump’s lawyers allege that the county had. improperly counted any late-arriving ballots. Instead, they merely noted, based on one poll watcher’s observations and his inability to “confirm the source” of certain absentee ballots, that it was “unknown” whether they were received on time or stored in compliance with Georgia election law.

In other words, as the court concluded in dismissing the petition, there was “no evidence that the ballots referenced in the petition were received after 7 p.m. on Election Day, thereby making those ballots invalid,” nor was there evidence that any county election officials “failed to comply with the law.” All the Trump campaign and Georgia GOP provided were unfounded allegations of such.

A third shared — and problematic — theme of these suits is plaintiffs’ or witnesses’ credibility issues. For instance, a handful of plaintiffs sued to stop the counting of absentee ballots in Clark County, Nevada, last week because of two purported problems: a lack of access for election observers and the use of signature-verification software that erroneously determined in-person voters had already cast mail-in ballots. But a federal judge denied emergency relief to those plaintiffs last Friday evening after determining that the lawsuit mimicked a state court case brought by the Trump campaign and others that remains in progress — and after Nevada election officials countered plaintiffs’ stories.

One of the plaintiffs, Jill Stokke, claimed that when she tried to vote in person on Election Day, election officials told her she had already cast a mail-in ballot when she did not; Stokke further claimed that her mailed ballot was erroneously accepted and counted because of Clark County’s use of certain signature-verification software. An official investigation, however, revealed that Stokke first told election authorities that her ex-roommate “may have taken her ballot,” but when given the opportunity to provide a written statement to that effect and to receive a provisional ballot, Stokke refused, insisting she should not be “pressured into implicating another person in a crime when she had no proof this crime actually occurred.”

A fourth theme has been the repacking and refiling of claims that have already been discredited or even denied. Social media was abuzz last week about “Sharpiegate,” the claim that Maricopa County poll workers encouraged voters to use Sharpies on their ballots and that such ballots were rejected. Indeed, by the day after Election Day, the Trump campaign and individual plaintiffs relayed a similar story in Arizona state court lawsuits. One voter alleged that the ballot box at her polling place “failed to properly register” her Sharpie-marked ballot and that poll workers refused to give her a new one.

By Nov. 5, two days after the election, Arizona Attorney General Mark Brnovich, a Trump-supporting Republican, announced that he was “satisfied” that Maricopa County’s use of Sharpies “did not result in disenfranchisement.” Rather than move on, however, the Trump campaign dismissed its original suit, repackaged it and refiled. With the same individual plaintiffs at the campaign’s side, its new lawsuit instead alleges that Maricopa County violated the law “by failing to provide ballots with sufficient thickness to prevent the marking devices provided to [voters]” — aka Sharpies — “from bleeding through,” never mind the repeated public insistence by Arizona’s secretary of state that bleed-through would not invalidate a ballot.

Finally, and perhaps most categorically, the overwhelming majority of these claims are small potatoes. Even the one case already in the U.S. Supreme Court, if successful, would simply prevent Pennsylvania from counting what Pennsylvania’s secretary of state described as “not a significant amount” of mail-in ballots that arrived between Election Day and last Friday. Given that, at this writing, the margin in Pennsylvania is over 50,000 votes — and the assumption remains that any outstanding ballots will favor Biden — letting the legal process run its course would have no appreciable impact on the bottom line. In fact, even if Trump were to win his ongoing cases in Pennsylvania, thereby excluding the late-arriving mail ballots and certain provisional ballots, it is likely that Biden’s certified margin of victory in the state would still exceed Trump’s Pennsylvania margin in 2016.

Finally, and perhaps most categorically, the overwhelming majority of these claims are small potatoes.

All of this may explain why, this week, the Trump campaign has shifted gears and brought cases in Pennsylvania and Michigan federal courts that would prevent those states from certifying all ballots cast in those states, or at least significant swaths of votes, such as all Pennsylvania mail-in ballots or all ballots cast in known Democratic strongholds (e.g., Wayne County, Michigan) in purported violation of various state election laws. And the goal of these suits is as transparent as it is terrifying: If they can convince courts to block certification of these states’ results, in whole or in part, GOP-controlled state legislatures can step in to fill the gap by appointing electors of their own choosing.

But these bigger, seemingly scarier suits ignore federal election law dating to 1887. And more immediately, they feature the same, basic litigation defects that characterize the Trump campaign’s earlier efforts. The new Pennsylvania federal case is illustrative in that regard; it is riddled with hearsay, rank speculation and an absence of actual evidence to support the claims. Indeed, rather than submitting any supporting affidavits, including from the two individual plaintiffs, the campaign instead had its Pennsylvania director of Election Day operations verify, under penalty of perjury, that the factual allegations of its 84-page complaint are “true and correct.” But that director could not possibly have personal, firsthand knowledge of all the complaint’s factual allegations. And like other witnesses in these cases, he also has a checkered past: On Oct. 1, he was escorted by law enforcement from a Philadelphia election office after taking pictures and videos on his cellphone and without any legitimate claim to be there as a poll watcher.

Similarly, the new Michigan federal case — which was first filed in the U.S. Court of Claims, the court overseeing monetary disputes involving the federal government — appears substantive on its face, accompanied by 238 pages of affidavits. Yet those affidavits reflect how little the witnesses know personally or were told directly; instead, they claim people without names or identifying details told them various facts; they couch their statements in “I believe,” “I heard,” “There seemed to be,” “I can estimate,” and “I contend”; they accuse poll workers of character deficiencies, like “persistent hostility,” instead of concrete legal violations.

Barring the release of a mountain of hitherto undiscovered or undisclosed evidence, these lawsuits aren’t going anywhere. The problem is that it may take some time for them to reach their natural dead-end. In the interim, we should all take a deep breath and tune out the politicians. As any good lawyer would tell you, these lawsuits not only won’t move the needle for Trump; they can’t even get off the ground.