Elections

Trump’s Vote-Count Lawsuits: The Election Endgame  

President Donald Trump participates in the first 2020 presidential campaign debate with Democratic presidential nominee Joe Biden in Cleveland, Ohio, September 29, 2020. (Jonathan Ernst/Reuters)
Human error and cheating occur in every election. The issue with fraud claims is whether it made a difference -- for the president, that is a steep mountain to climb.

President Trump’s campaign is vowing to file lawsuits challenging the results of the 2020 election in several key states. Ground zero for litigation is Pennsylvania. Rudy Giuliani, representing the president and the campaign, held a press conference in Philadelphia on Saturday, adumbrating the lawsuits he plans to begin filing today.

To call this an uphill battle understates the matter. At the moment, presumptive President-elect Biden is computed to be ahead in the electoral vote, 290 to 214. Three states have not yet been “called” (I’ll address what I mean by that shortly): Georgia (16 electoral votes) leaning Biden, and North Carolina (15) and Alaska (three) leaning Trump. That is a probable final “call” of 306 to 232 — ironically, as many have observed, the same total the president won by in 2016. Contrary to what he has claimed ever since, that is no landslide. It is, however, a commanding lead. He would need to flip Pennsylvania, where Biden leads by about 46,000 votes, plus at least two other states — the plausible candidates would seem to be Georgia, Arizona, and Wisconsin, where Trump is currently behind by less than one percent — respectively, 10,000, 17,000, and 20,000. The Trump camp also complains about voter fraud in Michigan, but he trails by over two percent (146,000) there.

I use the term “call” because of the complaints from Trump supporters that the press does not determine who wins the presidency. This grousing is understandable when people are raw after a tough loss, but it’s off the mark. There is plenty to complain about when it comes to the media, but here they are just reporting what the states indicate their tallies are, complemented by news organization polling. They “called” the election for George W. Bush in 2000, too, even though the result was disputed and was not official until the legal challenges worked themselves out. There is a process for that. Obviously, the states (technically, the electors they appoint), not the media, determine the winner as a matter of constitutional law, and that will happen by mid December. But we generally know, due to press reporting, who the de facto winner is shortly after the polls close on Election Day. Here, it took a few days rather than a few hours. That is all the “call” means, but it is reliable.

In any event, it is sensible that Pennsylvania is the center of the action. First, Trump needs the Commonwealth — if he doesn’t flip it, there is nothing else to discuss. Second, as we’ve been covering here at NR since mid October, there is already a live Supreme Court case challenging Pennsylvania’s election law, relating to whether the three-day extension for receiving ballots (i.e., through close of business last Friday, November 6) is constitutional. Finally, the Keystone State is where the Trump camp believes it can make a strong case of fraud.

Human error and at least some cheating occur in every election of any size — and it looks like, when the dust settles, approximately 150 million Americans (a record) will have voted in the 2020 election. So the issue with claims of election fraud and other impropriety is always: Did it make a difference — i.e., if whatever improprieties had not occurred, would the outcome have been different?

For the president, that is a steep mountain to climb. Even with the election having been close, we are talking about the need to shift tens of thousands of votes — I’d estimate at least 80,000, and probably more, spread in the right quantities over three states — before the outcome would arguably be in doubt.

That means that if the president is determined to mount a challenge, the Trump team has no alternative but to allege and try to prove systemic fraud and/or illegality. As Giuliani acknowledged on Saturday, the campaign has no evidence of fraud traceable to individual ballots. They are claiming that the fraud or illegality is so innate in the system that massive amounts of votes must be discarded, or at least re-canvassed with scrutiny for fraud.

That is why the Supreme Court case still matters, though it is unclear how much. As I detailed in a Fox News column on Saturday, Justice Samuel Alito ordered on Friday night that the late-arriving ballots be segregated in Pennsylvania’s 67 counties. Earlier, at the behest of justices Alito, Clarence Thomas, and Neil Gorsuch, state election authorities had represented that the county election boards were physically segregating the ballots, although it appears that most, if not all, of them had been counted in the state’s tally. But in light of the state Republican Party’s complaint that the election officials in question did not have technical authority to order the county election boards to segregate ballots, Alito ordered it in his capacity as circuit justice.

It is unclear how many of these late-arriving ballots there are. CNN reported that about 10,000 were received on Wednesday, the day after the election, and fewer were expected to trickle in Thursday and Friday. Pennsylvania secretary of state Kathy Boockvar, a partisan Democrat (as is the state’s attorney general, Josh Shapiro, who is defending the three-day extension in court), has opined that the late-arriving ballots will not be make-or-break. That is probably true if they are considered alone. But at least theoretically, they could make a difference if they were one part of a larger picture of illegality.

That is the picture Giuliani sought to portray on Saturday. His basic claim is that certified Republican Party poll-watchers were denied meaningful access to monitor the ballot inspection and counting in Philadelphia. He insists that “there was no inspection of a single mail-in ballot.” Since mail-in ballots are more prone to fraud than in-person voting, and since Philadelphia has a history of vote-fraud and political corruption, Giuliani argues that there must be a higher degree of care in the tabulation process; instead, the Trump campaign alleges that there was outright obstruction of the Republican poll-watchers.

At the press conference, Giuliani produced three poll-watchers who claim that they were kept at a distance so remote that they could not see all the ballots being processed, were denied entry into the vote-counting room, and/or were harassed by Democrats. Let’s just say the presentation is not off to an auspicious start. President Trump originally suggested that the press conference would be held at a Four Seasons Hotel; the actual location was a Philadelphia store called Four Seasons Total Landscaping. That was an amusing hiccup. What was not amusing were reports over the weekend that the first witness presented, Daryl Brooks, is a convicted sex offender (prosecuted in 1998 for allegedly exposing himself to two girls, aged seven and eleven). Brooks claims to live in Philadelphia, though he makes a habit for running for public office as a resident of New Jersey.

Let’s put that, ahem, credibility issue aside (again, Brooks was one of three witnesses, and Giuliani claims to have many others) and delve into the election-fraud claims. It should be noted that after the canvassing began, the Republican watchers were being kept 15 feet or more from the ballot processing. The Trump campaign complained. Though the Court of Common Pleas in Philadelphia rejected its claims, the Commonwealth Court reversed and ordered that the GOP watchers be permitted to monitor from six feet away (observing social-distancing COVID protocols). Giuliani’s witnesses say that, after that order, they were permitted to get within six feet of the processing tables, but then the election-board members simply receded further back, continuing to undermine the monitoring effort.

Giuliani maintains that this puts over 300,000 ballots in question, and that there are at least another 300,000 at issue in Pittsburgh (Allegheny County) for the same reasons. Giuliani further posits a motive: He notes that late on the night of the election, President Trump appeared to be ahead by over 700,000 votes. So the theory is that what Rudy called the “decrepit Democratic machine” produced fraudulent ballots to erase the deficit and put Biden ahead.

On that score, one of the GOP poll-watchers at the press conference, a lawyer named Max Silver, claimed that there were boxes of ballots that seemed, from a distance, to be filled out with an “unusual pen” and to have distinct handwriting — i.e., as if the same person filled out numerous ballots. He and Giuliani conceded, however, that Silver was not able to examine this up close — which, of course, is the point.

We will have to examine the complaints the campaign vows it will file in court, beginning today. A few things are worth bearing in mind.

As University of Texas law professor Steve Vladeck recounted on Twitter, the Trump campaign initially went to federal court to seek to have the ballot-counting stopped, claiming that “Republican observers are not present” in the counting room. But when District Judge Paul Diamond expressed skepticism, a Trump team lawyer grudgingly admitted that “there’s a non-zero number of [GOP] people in the room.” Not surprisingly, the campaign has since, shall we say, tweaked its position, denying that it had meaningful access to the process.

Also, while Giuliani is stressing the poll watchers, he hasn’t said much about the people doing the actual canvassing of ballots — the county election boards. Under Pennsylvania law, it is required that there be minority representation on these boards. The count itself is supposed to be a bipartisan exercise. Moreover, while representatives of the candidates and major parties are permitted to act as poll watchers monitoring — but not necessarily auditing — the process, state law strictly limits their number. Thus, reviewing courts may find the county boards had discretion to keep some out, and some at a distance, as long as the count itself was conducted in bipartisan cooperation.

That said, the law also requires that each county board must conduct inspections to verify that the absentee voter whose ballot has been submitted has the right to vote. Giuliani’s witnesses indicate that this procedure was not carried out in a meaningful way. When asked whether he could prove this default, Giuliani countered that, with absentee ballots, the burden of proof should be on the state, which claims that they are valid; it should not be on the challenger, who does not have access to the physical ballots — indeed, whose access was denied, the witnesses say.

Further, Pennsylvania law says that once the canvassing starts, it “shall continue until all absentee ballots and mail-in ballots received prior to the close of the polls have been canvassed.” To the extent it has been reported that there were pauses in the counting, I have not found any provision in Pennsylvania law that would authorize the canvass to be stopped prior to completion — which, obviously, could invite problems depending on how the ballots were secured during any pauses.

In sum, the Trump campaign’s fraud allegation is more theoretically aimed at the system of voting than concretely aimed at demonstrating the fraudulence of any particular ballot. But it is not entirely theoretical; Giuliani produced three witnesses who raise disturbing questions about the process, and he says he could produce over 50 such witnesses. He also says the derelictions occurred in other states — he explicitly mentioned Georgia, Michigan, and North Carolina at the press conference.

Plainly, the Trump strategy is: (a) cast sufficient doubt on hundreds of thousands of Philadelphia and Pittsburgh mail-in ballots that the courts order a recanvass which is closely scrutinized; and (b) continue prodding the Supreme Court to invalidate however many thousands of ballots arrived late — i.e., were received under the state court’s three-day extension, which countermanded the 8 p.m. Election Day deadline set by the state legislature (the body constitutionally empowered to set voting rules). The Trump campaign needs to knock out over 46,000 Biden votes, and surmises that the vast majority of these two buckets of ballots will be Biden votes — most of the votes come from urban Democratic strongholds; plus, Biden supporters were enthusiastically encouraged to vote by mail, whereas Trump urged supporters to vote in-person.

I suspect the lawsuits will not get traction if state officials can demonstrate that the actual counting of ballots at the county level was a bipartisan process in which Republicans meaningfully participated, and if they produce credible poll-watcher witnesses of their own to rebut the claims of the GOP poll-watchers. If the president fails to get traction in Pennsylvania, it would be time to concede to presumptive President-elect Biden. Pennsylvania is not sufficient for Trump to pull the proverbial rabbit out of the hat; but it is necessary.

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