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.