Reprinted with permission from ProPublica
The reelection campaign of President Donald Trump, having failed to persuade the majority of American voters, is now making its case to the American courts. The campaign and its allies aren't doing much better in the latter quest than they did in the former. Close to half of the two dozen or so cases brought since Election Day in key swing states have already been withdrawn or tossed by judges, with many of the rest seemingly destined for a similar fate. American politics may be notoriously divided, but inside the halls of justice, at least one example of unanimity seems to be prevailing: Whether the judges are liberal or conservative, working for state or federal courts, they've overwhelmingly demanded that the Trump and Republican plaintiffs deliver evidence to back their claims and they've been quick to reject what they consider baseless lawsuits.
One pattern has emerged in the fusillade of lawsuits: a frenzied search for a sympathetic judge. In each of four states — Pennsylvania, Michigan, Nevada and Arizona — the Trump campaign and its allies have filed a succession of suits that make essentially the same claims before several different state and federal judges.
A little over a week into the Trump campaign's postelection wave of litigation, the lawsuits have generated more heat than light. The GOP has scored some minor victories — an order, for example, from a Pennsylvania state judge who threw out a handful of ballots that were granted more than six days after the election to provide missing information.
But mostly things aren't going according to the Trump campaign's plan, to the extent that a coherent legal plan can be discerned from the pattern of lawsuits. For example, in Michigan, where the current 148,000-vote margin in Biden's favor makes the odds of a reversal particularly steep, the Trump campaign and supporters have filed a total of five suits. In Wisconsin, where the margin is a much smaller 20,500 votes, only one has been filed, in this instance by a pro-Trump group on Thursday.
Still, failure hasn't slowed the pace of the legal challenges, which can seem chaotic. One Michigan suit was apparently dispatched with such haste that it was filed first in the wrong federal court, the court of claims, before being refiled later the same day in federal district court.
A new suit the Trump campaign initiated Wednesday in federal court in Michigan goes so far as to append, in its entirety, another lawsuit, a 77-page document filed by a pair of GOP poll observers two days earlier in state court in Detroit. Both suits ask the courts to block the certification of the state's presidential election. They claim widespread impropriety and fraud by election officials who allegedly prevented GOP observers from conducting oversight. The claims are backed by dozens of affidavits that offer much in the way of rhetoric, but little in the way of factual support. These lawsuits build on yet another couple of lawsuits with similar allegations, which were thrown out for lack of evidence by two different state judges. One of the judges, Timothy Kenny, was assigned to hear the new state court lawsuit filed this week.
“By now, we've seen this before, and we're seeing it in multiple places," David Fink, who is representing the city of Detroit and other municipal defendants in that case, told Kenny during a hearing Wednesday afternoon. “In some ways, it's starting to feel, in this courtroom at least, like Groundhog Day."
During a conference call with reporters, also on Wednesday, Michigan's top legal official, who has responsibility for investigating allegations of election fraud, said aloud what Fink implied. “In my view, this is really a brazen case of forum shopping," Attorney General Dana Nessel, a Democrat, said. Even though the campaign's new federal lawsuit focused on Detroit, Nessel observed, the suit wasn't filed in the Eastern District of Michigan — the federal court that encompasses Detroit — but in the Western District of Michigan, where all five judges were appointed by Republican presidents. (The lawyer opposite Fink in Michigan state court, David Kallman, said during Wednesday's hearing that neither he, his firm, nor his clients had any involvement with other Republican lawsuits. In an interview with ProPublica, Kallman called allegations of forum shopping in his case “just silly." He has not coordinated with the Trump Campaign or the Republican National Committee, he said, and he didn't seek the case and decided to take it on after being approached by a Detroit poll worker.)
There's been similar gamesmanship in Arizona, where two nearly identical cases, centered on the allegedly unfair treatment of Sharpie markers used by Trump voters at polling precincts in the Phoenix area, were tripped up by several days of procedural misfires before the GOP lawyers finally appeared to get the cases consolidated under the judge they preferred.
Thor Hearne, the Trump campaign lawyer behind the Michigan federal lawsuit brought on Wednesday and a longtime evangelist of the view that voter fraud is rampant, took these types of tactics a step further and sought out a particular judge. Hearne marked the federal lawsuit “related" to another suit, which had been filed in June. The “related" designation assigns the same judge to both cases. To call the new case and the June case related — meaning, under the court's local rules, that the underlying facts overlap and the cases share similar legal questions — is a stretch at best. The June lawsuit sought to require Michigan officials to purge 800,000 registered voters from the state's rolls under a federal voter registration law. It has nothing to do with how the 2020 election was run. But the appeal for Hearne of the judge presiding over the June case, a George W. Bush appointee named Robert Jonker, is easy enough to pick out: Last month, Jonker denied a request by state officials to dismiss the voter purge case. The maneuver failed. On Thursday, the court deemed the cases not related and randomly assigned Hearne's lawsuit to another judge. (Hearne did not immediately reply to a request for comment.)
Judges have repeatedly expressed irritation with Hearne and other lawyers on the Trump side. A judge in Michigan last week had to teach Hearne what hearsay is. The judge, Cynthia Stephens, provided this helpful definition — “I heard somebody else say something" — before adding, regarding one of Hearne's key claims: “Tell me why that's not hearsay. Come on, now." At an emergency hearing in Philadelphia requested by the Trump campaign, a federal judge was exasperated with a local campaign lawyer, Jerome Marcus, who wouldn't give him a straight answer about the representation of GOP observers at the city's canvassing center. (Marcus' legal filings claimed they were being barred from observing.) Marcus acknowledged that a “nonzero number of people" were there for the Republicans. “I'm asking you, as a member of the bar of this court, are people representing Donald J. Trump for president, representing the plaintiff, in that room?" the judge, Paul Diamond, asked. Marcus answered, “Yes." “I'm sorry, then what's your problem?" Diamond shot back. Earlier this week in a nearby suburb, another judge's questioning of a lawyer representing the Trump campaign, Jonathan Goldstein, forced him to concede that the 592 ballots he was challenging were tainted by neither fraud nor improper influence. “Your Honor, accusing people of fraud is a pretty big step," Goldstein said. The lawyer did not address the fact that his client, the president of the United States, is regularly making that precise accusation on Twitter.
At a hearing in the Arizona Sharpie case on Thursday, too, it was difficult to discern exactly what wrongdoing the Trump side believed had occurred. “This is not about fraud," Kory Langhofer, a local attorney for the Trump campaign, told a judge. The lawsuit was premised, in part, on the idea that bleeding Sharpies and poll worker error had cost a slew of Trump supporters their vote. Sworn witness affidavits filed with the lawsuit included the sentence, “I believe my vote for Donald J. Trump and Michael Pence was not counted." Under cross-examination, however, the witnesses told a different story. The refrain became familiar by the end of the six-hour hearing. A lawyer for the Arizona Democratic Party: “Do you have any reason to believe that your vote wasn't counted?" Trump campaign witness: “No." On Friday, Langhofer conceded in court papers that his case as to the presidential election was moot. (He's still pursuing a separate part of the suit that relates to a State Senate election.) Biden's margin of victory vastly exceeded the 191 ballots at issue in the case.
Even when the Trump side uncovered apparent irregularities, they tended to fizzle under closer scrutiny. A lawyer representing two Republican poll observers at Wednesday's hearing in Detroit submitted the sworn affidavits of several witnesses who attested to what they believed to be fraud at Detroit's main canvassing site. Kenny, the judge, summarized the pattern alleged by the claims as follows: “This is what I saw, with the conclusion being this must be representative of fraudulent behavior." For example, workers at the convention center never checked the signatures on mail-in ballots, some witnesses alleged, which proved, as the president and his surrogates had been saying for months, that voting by mail was ripe for fraud. Others saw workers enter some voters' birth dates as Jan. 1, 1900. The dead, they concluded, were voting in Detroit.
The city countered. You may have seen what you claim you saw, but the conclusion that you draw is incorrect, asserted Chris Thomas, a longtime state elections director who had come out of retirement this year to help Detroit run its election, in written testimony. The mail-in ballot signatures were checked at a different location, before the ballots arrived at the convention center. And the 1900 date was a placeholder. Workers counting mail-in ballots lacked access to voter birth dates, which the computerized tabulation system required them to enter, so they entered Jan. 1, 1900.
Only two days after the hearing, the judge dealt the Trump supporters a sweeping defeat. Kenny declined to block the state from certifying its election results or to order an audit. The affidavits of Republican observers and other witnesses were, as the judge described one affidavit, “rife with speculation and guess-work about sinister motives" by poll workers, claims they raised only after it became clear their preferred candidate, Trump, wouldn't carry Michigan. GOP observers had skipped a training session ahead of the election and misinterpreted what they saw because they “knew little about the process."
There's little sign the newest (as of this writing) pro-Trump suit will have better prospects. On Thursday, three Wisconsin voters, backed by a controversial Texas conservative group called True the Vote, filed suit, asking a federal judge to block officials from certifying votes in three counties that favored Biden over Trump. (The group has filed similar lawsuits in Michigan, Georgia and Pennsylvania.) According to the lawsuit, the “Plaintiffs possess advanced technical capability to conduct statistical analyses" and want officials to give them a range of voting data to analyze. But when ProPublica interviewed James Bopp, an Indiana-based attorney representing the plaintiffs, he offered an account at odds with the document he filed. “None of the plaintiffs have the credentials to, or the resources to, conduct a very sophisticated data analytics operation," he said. Bopp is hoping True the Vote, which is not a party to the suit, will be allowed to conduct the analysis.
Even if the Trump campaign were to turn its legal luck around, the quantities of votes questioned by most of the postelection lawsuits fall far short of the numbers needed to change the outcome of the election. The campaign has failed to find evidence of the kind of widespread irregularities that it would need to turn up in at least three states to have a chance to push Biden's presumptive 306 electoral votes below the 270 threshold and throw the election to Trump. Biden's margins in the states key to his victory range from nearly 148,000 in Michigan, as noted, to 59,000 (and counting) in Pennsylvania and 35,000 in Nevada, on down to 11,000 in Arizona, a figure that may tighten but is expected to allow Biden to carry the state.
The rare elections in which challenges to ballots make a difference tend to be dramatically smaller, and they tend to involve a conspiracy not in the theoretical sense raised by Trump's lawsuits but in the criminal sense. In 2018, the North Carolina state elections board ordered a revote in the race for the state's 9th Congressional District after a local operative working for the Republican candidate, Mark Harris, was found to have perpetrated a ballot fraud scheme. Harris won by only 905 votes out of around 278,000 cast in the 2018 election and decided not to run in the re-vote in 2019. (The seat was then won by a different Republican candidate.)
More than two decades ago, a Florida court threw out 5,200 absentee ballots cast in the 1997 Miami mayoral runoff following the discovery that a massive fraud scheme had so infected the pool of ballots that they had to be invalidated. It was a rare instance where the outcome changed. Fewer than 3,000 votes separated the candidates, out of about 44,000 votes cast, and most of the people involved in the fraud scheme had worked for the candidate who initially appeared to have won. In both cases, indictments followed.
As the clock ticks closer to key deadlines in late November and early December, the Trump campaign and its allies have also grown more aggressive in what they're asking of judges. In lawsuits filed over the past week in Michigan, Wisconsin, Georgia, Arizona and Pennsylvania they have asked judges to block state officials from certifying the election results until the plaintiffs' concerns are met or to order officials not to include ballots from entire counties that went to Biden. As of Thursday afternoon, there was no indication that judges would grant any of those requests.
In swing states with close margins, recounts offer another remedy for Trump. In Georgia, where Biden commands a 14,000-ballot lead, the Republican secretary of state, Brad Raffensperger, announced an unusual manual recount after coming under pressure from members of his own party. (A New York Times article on Thursday asserted that the recount would technically be an audit.) Although Arizona is likely to produce the narrowest margin, the state will recount the votes only if the gap between Biden and Trump falls to within 0.1 percentage points. At present, Biden is ahead by a little more than 0.3 percentage points, and his 11,000-vote lead would need to fall to somewhere between 3,000 and 4,000 votes to trigger a recount. Last week, the Trump campaign announced it intended to seek a recount in Wisconsin once the vote count is finalized. Biden's 20,500-vote lead — a 0.6-percentage-point edge — falls within the one point margin for a recount. But because it's greater than a quarter of a percentage point, the campaign will have to pay somewhere around $3 million for it.
It's unlikely to be worth it. Biden's margin in Wisconsin is similar to Trump's over Hillary Clinton in 2016, and a recount that year paid for by Green Party candidate Jill Stein had a negligible impact on the outcome — netting Trump 131 additional votes. In the infamous Florida recount of 2000, there was a bit more movement, but not enough to change the result: 1,784 votes initially separated Bush and Al Gore, and the recount was eventually certified at a gap of 537 votes after the U.S. Supreme Court halted the process. Subsequent studies found there was a high likelihood Bush would still have won had the recount proceeded. (It's also worth noting that, for all the controversy about the Supreme Court's role in 2000, the court's decision was to halt a recount in one state. The court did not overturn the election results in a state, much less in multiple states, which is what would likely be required for Trump to prevail.)
So if challenges and recounts are unlikely to turn the tide in Trump's favor, what's the point of all this litigation? At present, it's unclear, and it may be there is no single motivation driving it. Some reporting has suggested it's the final flailing of a president who can't stand to lose. Others believe the goal is to keep the Republican base fired up ahead of two Jan. 5 runoff campaigns in Georgia that will determine which party controls the Senate.
Given the nonstop solicitations for donations coming out of the Trump campaign, still others have pointed to the fundraising value of the litigation push. Tellingly, the fine print notes that 40 percent of donations to Trump's “Official Election Defense Fund" goes to the Republican National Committee. The other 60% goes first to a new PAC Trump has set up, Save America, up to the maximum contribution, $5,000. Only after that limit is exceeded does the contribution go to funding election litigation. So, for a $10,000 donation, $4,000 would go to the RNC, $5,000 would go to Save America, and only $1,000 would go to the Trump campaign's litigation fund.
The aim is, at least in part, to get judges to block states from certifying their popular votes before key deadlines, according to a report in the Wall Street Journal that cited “advisers and lawyers involved." Certification delays could prevent states from finalizing their presidential election results by Dec. 8, a key deadline under the federal Electoral Count Act. If a state has finalized its election results by that date — six days before each state's electors meet to cast their vote for president — it generally prevents Congress from rejecting that state's electors.
A lot of weird things can happen when Congress meets on Jan. 6 to tally the results of the Electoral College vote and the relevant laws are ambiguous and untested. Suffice it to say that states really don't want to miss that Dec. 8 deadline. The Constitution gives state legislatures the power to choose how their state selects electors, and in theory a legislature could step in and vote for a slate of electors that would vote for Trump even though Biden won the popular vote in the state or vice versa. This would be worse news for Biden, though. Apart from Nevada, the legislatures of the states essential to his Electoral College majority are under Republican control. There are also scenarios where a state might certify competing slates of electors. It gets messy and confusing fast.
In the worst case, if somehow the situation ended up such a mess that neither Biden nor Trump received 270 Electoral College votes, the 12th Amendment to the U.S. Constitution throws the decision to the House of Representatives, with each state delegation awarded one vote — a set of circumstances that would favor Republicans.
The threat of activist state legislatures isn't as scary as it might sound to Democrats. It's a politically fraught and legally complicated process for a legislature to disenfranchise its citizens after they've voted, though the Florida Legislature considered it as the 2000 recount dragged on. And there's no sign that legislatures are moving in this direction. In Pennsylvania, for example, the GOP majority leaders of both houses of the legislature have disavowed this kind of intervention. Republican legislators in Michigan, Wisconsin and Pennsylvania have announced inquiries into the presidential election in their states, but though these inquiries may serve as pretext to push for more restrictive voting laws, there's no reason yet to believe that it's a way to gin up an argument for intervening to void an ostensibly illegitimate election.
Still, it's worth keeping in mind — as it seems at least some in Trump's orbit are — that the room for mischief grows if a state is at risk of missing, or does miss, the Dec. 8 deadline. If this kind of scenario is what Trump and his allies are playing for, that's the date they've got their eye on.
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