Courts will not entertain claims of election improprieties unless what can be proved would make a difference.
Courts will not entertain claims of election improprieties unless what can be proved would make a difference.
T he Washington Times reports that the Trump campaign has dropped its federal lawsuit in Michigan, by which it challenged over a million mail-in ballots in the hope of preventing the state government from certifying the election result. It is clearly a face-saving measure: The suit had no chance of success, and the rationale the campaign has given for dropping the case is inaccurate.
The campaign claimed that the lawsuit was being withdrawn “as a direct result of achieving the relief we sought,” which Rudy Giuliani, the president’s lawyer, described as “to stop the election in Wayne County from being prematurely certified before residents can be assured that every legal vote has been counted and every illegal vote has not been counted.” He was alluding to the announcement by the two Republican members of the canvass board in Wayne County that they would like, yet again, to reverse themselves.
In reality, however, the Wayne County vote has been, and remains, certified, at least at the county level. According to current reporting of returns, presumptive President-elect Joe Biden defeated President Trump by more than 322,000 votes in Wayne County, a traditional Democratic stronghold that includes Detroit.
During a tumultuous meeting on Tuesday evening, the board’s GOP members, Monica Palmer and William Hartmann, initially voted against certification, creating a 2–2 deadlock with their two Democratic counterparts. After vitriolic argument, which included accusations of racism over what was portrayed as their attempt to disenfranchise a predominantly African-American city, the Republicans reversed themselves. In so doing, they said they’d gotten assurances that there would be an audit of the ballots.
Consequently, the vote to certify Wayne County ballots was unanimous, 4–0.
On Wednesday, however, Palmer and Hartmann announced in affidavits that they were “rescinding” their certification votes. This announcement has no legal effect, since there is no mechanism under state law for such a rescission. The GOP canvassers say they were coerced into “yes” votes and are miffed that Michigan secretary of state Jocelyn Benson does not consider whatever audit assurances were given them to be binding.
A spokeswoman for the office of Secretary Benson stated that Wayne County’s work is completed. As our Jim Geraghty explains, the next step is for Michigan’s county certifications to be transmitted to the state canvass board for full certification of the state’s votes. Biden won the state by over 157,000 votes, so state certification means the Democrats’ slate of electors would then be appointed to cast Michigan’s 16 Electoral College votes for him.
Nevertheless, the Trump campaign used the purported rescissions as an opportunity to declare what it sees as an optical victory and drop the Michigan lawsuit. It was withdrawn on Thursday. Clearly, the campaign had little hope for it. Just two days ago, U.S. district judge Janet Neff expressed puzzlement because the campaign had not yet served its complaint on Secretary Benson, and threatened to dismiss the case “for failure to diligently prosecute.”
The lawsuit was analogous to the federal suit the campaign has pending in Pennsylvania. As I detailed last night, that suit was drastically pared down over the weekend precisely because the fraud counts on which the campaign initially relied were unavailing.
To be clear, dropping those counts was not an admission that fraud did not exist; it was an acknowledgement that the claims, at least as currently framed, are not cognizable under federal law. There are various reasons for that, but the principal ones also apply to the cognate claims in the now-abandoned Michigan lawsuit: Courts will not entertain claims of election improprieties unless what can be proved would make a difference in the outcome; and sweeping claims that state officials did not comply with state laws are often not cognizable in federal court.
While the Trump campaign continues to allege publicly that fraud on a gargantuan scale took place in Detroit, the GOP canvassers in Wayne County raised far more modest objections. These involved mismatches between the number of ballots recorded as cast and the number counted. In his Politico column, our Rich Lowry notes the Detroit Free Press’s report that the mismatches in most precincts and voter boards amounted to three or fewer votes, cumulating to a grand total of 387 votes.
Bottom line: The Trump campaign has dropped its federal lawsuit alleging vote fraud in Michigan, particularly in Wayne County. The Wayne County Canvassing Board has certified the vote, however, and the Republican canvassers’ post facto “rescission” has no legal force. The action now moves from the county to the state level, and Michigan law calls for final certification November 23.