The new Georgia lawsuit raises significant and highly specific claims of illegality, in a departure from the approach of prior suits.
Biden still would win the presidency even if Georgia’s election outcome were reversed. But the state should answer the claims of illegality anyway.
T he federal “safe harbor” date for state certification of presidential-election results is Tuesday. As Jim Geraghty explains, this means that, as far as the federal government is concerned, a state’s certification of its result is deemed conclusive.
That may not be quite as conclusive as it sounds. There is no federal law that prevents a state from altering its certification between Tuesday (December 8) and next Monday (December 14), when the Electoral College actually casts its votes in each state. But getting a state to reverse its certification would be extraordinarily difficult. Federal courts would almost certainly refuse to entertain a lawsuit challenging the certification at this point. Any challenge would have to be pursued in the state, where the officials would not have certified if they did not consider the matter closed.
Thus, the slim chance that any Trump campaign lawsuit challenging Joe Biden’s victory can make headway gets slimmer by the minute. Still, we should take note that the lawsuit the president and his campaign filed in Georgia state court on Friday is, on its face, the best legal challenge mustered so far.
In the Peach State, the campaign is represented by different counsel than it has been elsewhere. The 64-page complaint is a linear, cogently presented description of numerous election-law violations, apparently based on hard data. If true, the allegations would potentially disqualify nearly 150,000 illegal votes in a state that Biden won by only 12,000.
To be sure, we have not yet heard a response to the specific claims from the state respondents, led by Georgia secretary of state Brad Raffensperger. I should further note that I have seen only the complaint, not the underlying exhibits; I am in no position to evaluate the credibility of the sources or the accuracy of the lawyers’ number-crunching. That said, if the campaign had taken the exacting approach of this lawsuit from the beginning, rather than swinging wildly on farfetched fraud claims, it would have gotten more traction.
The complaint filed in state superior court, Fulton County, pleads hard numbers of votes that were allegedly cast either by ineligible voters or in an illegal manner. This is a far cry from, for example, the campaign’s irrational demand that courts throw out potentially millions of Pennsylvania votes on an unsubstantiated inference of fraud based on the alleged inability of Republican poll-watchers to monitor the canvassing process effectively — to say nothing of the unhinged cyber-fraud claims about Dominion voting machines (which have now been thrown out in Georgia as well as Michigan).
Bottom Line: 143,986 Allegedly Illegal Votes in a Race Biden Won by 12,000
In light of that history, it is no surprise that media coverage has peremptorily dismissed the Georgia claims as just the latest in a string of desperate, baseless allegations. Yet, they are more thoughtfully posited and worth pausing over. According to the complaint, the following were illegally permitted to vote:
- More than 66,247 people who were underage.
- At least 40,279 people who had moved across county lines at least 30 days before the election and failed to re-register in their new county, as state law requires.
- At least 15,700 people who had filed a national change of address form with the U.S. post office before Election Day.
- As many as 10,315 people who were deceased by the time of Election Day, including 8,718 who perished before the date the state accepted their vote.
- At least 4,926 people who registered to vote in another state after their Georgia registration date (indicating they were no longer citizens of Georgia).
- As many as 2,560 disqualified felons.
- At least 2,423 people who were not registered in state records.
- At least 1,043 voters who gave only a post-office box as their residential address, in violation of state law.
- At least 395 people who also cast ballots in a state other than Georgia (the campaign says this is a low-ball number, but it lacks access to the state data that would conclusively show a higher number, perhaps much higher).
- At least 98 people who registered after the state deadline for doing so.
Even assuming that there is some overlap among these categories, they total up to 143,986 illegal votes. At least some categories, such as the young and felons (cumulating to 68,807 votes, according to the complaint), could reasonably be expected to have voted heavily for Democrats (young people ages 18 to 29, for example, reportedly broke nearly 2-to-1 for Biden; and Democrats have championed voting rights for felons).
If the complaint’s allegations were to prove true — which, I stress again, we cannot predict at this point — it would not be unreasonable to believe that illegal votes more than accounted for Biden’s margin of victory. Given that the state is in possession of the relevant information, Georgia officials should alert the court and the public promptly whether, and to what extent, Trump’s categorical allegations of illegal voting have merit.
Detrimental-Reliance Claims
The complaint also raises casual violations of election law of the same general type that state officials in Wisconsin allegedly encouraged — i.e., the casting of ballots outside statutory parameters but with the active solicitude of state election officials (see my column on the Wisconsin litigation here).
For example, under Georgia law, to qualify for an absentee ballot, a voter must apply for one “not more than 180 days” before the election. Nevertheless, Secretary of State Raffensperger (a Republican) is alleged to have had unsolicited absentee ballot applications sent out to all qualified voters before the state’s primary on June 9, 2020. The primary was delayed nearly two months due to COVID-19, so it was a time of high anxiety. You want to say it was reasonable for Raffensperger, anticipating the heightened burden that the pandemic would cause for administering absentee ballot requests, to try to make the process of requesting one easier on both the voters and the election bureaucracy? Perhaps. As a state official, though, he is supposed to follow state law, unless that law empowers him to make accommodations in times of emergency (which the complaint does not address).
The complaint says the ballot applications sent out at primary time invited voters to check a box to request an absentee ballot for the general election. This, the Trump campaign says, was done more than 180 days before the election. As a result, at least 305,701 applications were submitted before the earliest date permitted under state law. In addition, the state allegedly sent 2,664 absentee ballots to voters before the earliest date permitted under state law (49 days before Election Day), and at least 50 of these were returned by voters before the ballots should even have been sent. There are also said to be a relative handful of other irregularities: 217 voters whose absentee ballots were applied for, issued, and submitted all on the same day (impossible if the process is done by mail); 92 absentee ballots submitted before a request for an absentee ballot was made; 13 absentee ballots submitted by unregistered voters; and two absentee ballots accepted by the state even though the state had rejected the applications.
As I observed in connection with the campaign’s Wisconsin allegations, these sorts of violations are not properly thought of as “fraud,” the loaded term the campaign has attached to all voting irregularities. This is more in the nature of detrimental reliance: voters responding to what they must presume are lawful instructions by state election officials. If the officials flout the law, that is not the voters’ fault.
Signature-Verification Claims
A similar analysis applies to the campaign’s claims that election law was violated by a consent decree, which state election officials entered into with Democratic Party activists in order to settle litigation over signature-verification requirements for absentee ballots. The campaign contends that Raffensperger and the State Election Board agreed to terms that effectively amended state law, which would be beyond their authority to do. The consequence, the campaign contends, materially compromised the effectiveness of signature verification.
This is obviously why the campaign has continuously pressed for a signature audit of all mail-in ballots — a demand that is repeated in the complaint. The Trump team argues that a comparison between signatures on ballot applications and ballot envelopes against signatures on the state’s voter-registration files would show significantly more non-matching than the number that Georgia records say were rejected on that basis.
Unlike past Trump campaign complaints, which drew extravagant deductions based on scant evidence, the Georgia complaint — if its figures are accurate — makes a convincing case that signature mismatches are a much bigger problem than Raffensperger has acknowledged.
In 2016, the complaint alleges, Georgia disallowed 6,059 absentee ballots, and in 2018, a total of 7,889 were disallowed; this means the rejection rates, respectively, were 2.90 and 3.46 percent. In 2020, due to the COVID-19-based liberalization of absentee voting, the total number of mail-in ballots, was 1,317,000 — five times the 2016 total and four times the 2018 total. Yet, in 2020, the state disallowed fewer ballots, 4,471, a rejection rate of just 0.34 percent — i.e., ten times lower than the 2018 rejection rate.
To put it mildly, it strains credulity to claim the rejection rate is accurate. The plausible explanation for the sudden plunge in the rejection rate is that the state was so overwhelmed by mail-in ballots, and the consent decree made signature matching so much more resource-intensive, that fraudulent ballots were missed. As the complaint asserts, if the 2020 election were consistent with Georgia’s rejection rate from the past four years — i.e., between 2.90 and 3.46 percent — then somewhere between 38,250 and 45,626 ballots would have been rejected, not a mere 4,471. I would point out that even if we were overly generous by past standards and assumed a rejection rate of only 2 percent, more than 26,000 ballots would have been disallowed. In an election that Biden is said to have won by capturing absentee votes at a 2-to-1 rate, that by itself could call into question his 12,000-vote victory margin.
The Stark Remedy Options
I won’t belabor some of the legal theories in the complaint, such as the claims that the way the election was conducted violated equal-protection principles and the right of voters to an election that complies with state law. As other courts have held, there are significant conceptual and standing problems with such claims. What is worth addressing is the campaign’s overarching theory.
As we’ve repeatedly discussed, courts will not entertain claims that would not affect the outcome of an election. But what is to be done when there are such claims? To preserve the secrecy of absentee voting, a ballot cannot be matched to the voter who submitted it once it has been accepted and separated from the outer envelope that identified the voter. At this point, then, it is not a simple matter of saying, “X person’s ballot should have been rejected, so let’s throw out X person’s vote.” A litigation could only hope to identify a gross number of unlawful votes, not for which candidate those votes were cast.
The only things it might be possible to say are (a) that there was so much illegal voting that the election is pervasively tainted and should be invalidated; or (b) more modestly, that the extent of illegal voting so outstrips the announced margin of victory that we cannot confidently say who won.
This is the campaign’s theory. On this basis, it is asking the court to prevent the certification of the result, even though the state has already certified; to enjoin the state from appointing electors to the Electoral College; to order that a new presidential election be conducted as promptly as possible; and “for such other relief that this Court deems just and proper under the circumstances.” Given that it would be impossible to conduct another election before December 14, this amounts to a plea to have the electors chosen in a different manner — such as, by a vote of the state legislature. Plainly, the campaign does not want to say that because it would involve disenfranchising 5 million Georgians who voted in the election. Even if the campaign’s claims of improprieties were credited, the overwhelming majority of Georgians still voted lawfully — the campaign wants the court to come around to the reluctant conclusion that their votes must be discounted, not appear to be calling for it (hence, the impractical suggestion to conduct a new election).
This goes to show how incredibly uphill post-election litigation is. To assemble a viable complaint takes a lot of work. If even some of the major allegations in the Georgia complaint are true, it must have taken an immense amount of research to find the data while identifying and interviewing the relevant witnesses. It has been just a little over a month since Election Day, and just 17 days since Georgia officials certified Biden as the winner. That left very little time to file claims that are now flush up against the safe-harbor date. This is a breakneck pace, even compared with litigation in most emergency situations.
At this point, it is unlikely that state officials would revisit the certification willingly, and with the safe harbor upon us, they probably figure there is no need to do so. Georgia, moreover, has only ten electoral votes, so Biden would still win the presidency even in the highly unlikely event that the state’s election outcome were reversed. Still, the new Georgia lawsuit raises significant and highly specific claims of illegality. The state government should answer them point-by-point, and promptly.