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Reprinted with permission from ProPublica

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.


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Former President Donald Trump, left, and former White House counsel Pat Cipollone

On Wednesday evening the House Select Committee investigating the Trump coup plot issued a subpoena to former White House counsel Pat Cipollone, following blockbuster testimony from former White House aide Cassidy Hutchinson, who said the lawyer had warned of potential criminal activity by former President Donald Trump and his aides.

The committee summons to Cipollone followed long negotiations over his possible appearance and increasing pressure on him to come forward as Hutchinson did. Committee members expect the former counsel’s testimony to advance their investigation, owing to his knowledge of the former president's actions before, during and after the January 6, 2021 attack on the U.S. Capitol.

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Mark Meadows

Donald Trump’s White House Chief of Staff Mark Meadows wanted a presidential pardon. He had facilitated key stages of Trump’s attempted 2020 coup, linking the insurrectionists to the highest reaches of the White House and Congress.

But ultimately, Meadows failed to deliver what Trump most wanted, which was convincing others in government to overturn the 2020 election. And then his subordinates, White House security staff, thwarted Trump’s plan to march with a mob into the Capitol.

Meadows’ role has become clearer with each January 6 hearing. Earlier hearings traced how his attempted Justice Department takeover failed. The fake Electoral College slates that Meadows had pushed were not accepted by Congress. The calls by Trump to state officials that he had orchestrated to “find votes” did not work. Nor could Meadows convince Vice-President Mike Pence to ignore the official Electoral College results and count pro-Trump forgeries.

And as January 6 approached and the insurrection began, new and riveting details emerged about Meadow’s pivotal role at the eye of this storm, according to testimony on Tuesday by his top White House aide, Cassidy Hutchinson.

Meadows had been repeatedly told that threats of violence were real. Yet he repeatedly ignored calls from the Secret Service, Capitol police, White House lawyers and military chiefs to protect the Capitol, Hutchinson told the committee under oath. And then Meadows, or, at least White House staff under him, failed Trump a final time – although in a surprising way.

After Trump told supporters at a January 6 rally that he would walk with them to the Capitol, Meadows’ staff, which oversaw Trump’s transportation, refused to drive him there. Trump was furious. He grabbed at the limousine’s steering wheel. He assaulted the Secret Service deputy, who was in the car, and had told Trump that it was not safe to go, Hutchinson testified.

“He said, ‘I’m the f-ing president. Take me up to the Capitol now,’” she said, describing what was told to her a short while later by those in the limousine. And Trump blamed Meadows.

“Later in the day, it had been relayed to me via Mark that the president wasn’t happy that Bobby [Engel, the driver] didn’t pull it off for him, and that Mark didn’t work hard enough to get the movement on the books [Trump’s schedule].”

Hutchinson’s testimony was the latest revelations to emerge from hearings that have traced in great detail how Trump and his allies plotted and intended to overturn the election. Her eye-witness account provided an unprecedented view of a raging president.

Hutchinson’s testimony was compared to John Dean, the star witness of the Watergate hearings a half-century ago that led to the resignation of President Richard Nixon for his aides’ efforts to spy on and smear Democrats during the 1972 presidential campaign.

“She IS the John Dean of the hearings,” tweeted the Brooking Institution’s Norman Eisen, who has written legal analyses on prosecuting Trump. “Trump fighting with his security, throwing plates at the wall, but above all the WH knowing that violence was coming on 1/6. The plates & the fighting are not crimes, but they will color the prosecution devastatingly.”

Meadows’ presence has hovered over the coup plot and insurrection. Though he has refused to testify before the January 6 committee, his pivotal role increasingly has come into view.

Under oath, Hutchinson described links between Meadows and communication channels to the armed mob that had assembled. She was backstage at the Trump’s midday January 6 rally and described Trump’s anger that the crowd was not big enough. The Secret Service told him that many people were armed and did not want to go through security and give up their weapons.

Trump, she recounted, said “something to the effect of, ‘I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the mags [metal detectors] away. Let the people in. They can march to the Capitol from here.

As the day progressed and the Capitol was breached, Hutchison described the scene at the White House from her cubicle outside the Oval Office. She repeatedly went into Meadows’ office, where he had isolated himself. When Secret Service officials urged her to get Meadows to urge Trump to tell his supporters to stand down and leave, he sat listless.

“He [Meadows] needs to snap out of it,” she said that she told others who pressed her to get Meadows to act. Later, she heard Meadows repeatedly tell other White House officials that Trump “doesn’t think they [insurrectionists] are doing anything wrong.” Trump said Pence deserved to be hung as a traitor, she said.

Immediately after January 6, Hutchinson said that Trump’s cabinet discussed invoking the 25th Amendment to remove a sitting president but did not do so. She also said that Meadows sought a pardon for his January 6-related actions.

Today, Meadows is championing many of the same election falsehoods that he pushed for Trump as a senior partner at the Conservative Partnership Institute (CPI), a right-wing think tank whose 2021 annual report boasts of “changing the way conservatives fight.”

His colleagues include Cleta Mitchell, a lawyer who pushed for Trump to use every means to overturn the election and leads CPI’s “election integrity network,” and other Republicans who have been attacking elections as illegitimate where their candidates lose.

Hutchinson’s testimony may impede Meadows’ future political role, as it exposes him to possible criminal prosecution. But the election-denying movement that he nurtured has not gone away. CPI said it is targeting elections in national battleground states for 2022’s midterms, including Arizona, Georgia, Florida, Michigan, and Pennsylvania.

Trump did not give Meadows a pardon. But in July 2021, Trump’s “Save America” PAC gave CPI $1 million.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

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