The Morning Jolt


Where the Post-Election Lawsuits Stand

Electoral workers count postal ballots in Philadelphia, Penn., November 6, 2020. (Eduardo Muñoz/Reuters)

This is Veterans Day; thank a veteran for all they’ve done to ensure we live in freedom. On the menu today is a long review of the largely unsuccessful legal efforts of the Trump campaign regarding the ballot counting in Pennsylvania and Michigan and the unfounded rumors that software issues are somehow switching Trump votes to votes for Biden.

Post-Election Lawsuits Ending Not with a Bang, but with a Whimper

On November 5, President Trump claimed: “If you count the legal votes, I easily win. If you count the illegal votes, they can try to steal the election from us . . . We’ll not allow the corruption to steal such an important election or any election, for that matter. And we can’t allow silence — anybody to silence our voters and manufacture results.”

The contention of the president and his campaign is that the votes making up Joe Biden’s margin of 45,616 votes in Pennsylvania, 36,726 votes in Nevada, 20,539 votes in Wisconsin, 14,149 votes in Georgia, and 12,813 votes in Arizona are all fraudulent and should be invalidated and Trump declared the winner.

The Trump campaign is not winning much in court since the election. In Friday’s Morning Jolt, we noted judges rejecting their arguments and requests in Georgia, Michigan, and Pennsylvania. In Monday’s Morning Jolt, we noted judges rejecting their arguments and requests in Nevada and again in Michigan, and how a suit similar to one they filed in Arizona was withdrawn after the Republican state attorney general said he found no cause for concern.

In Pennsylvania, Republicans sued to “block counties from counting provisional ballots cast by voters whose mail ballots contained mistakes and were going to be disqualified. Commonwealth Court judge P. Kevin Brobson ordered those ballots be separated but said they could be counted if they are found to be eligible through the normal process counties use to verify provisional ballots. . . . from a practical standpoint, the order will not require counties to do anything differently, since they already examine provisional ballots separately to determine their validity.”

Also in Pennsylvania, the Trump campaign went to court to stop the Montgomery County Board of Elections from counting 592 mail-in ballots, contending that the board was counting “absentee and mail-in ballots for which the outer declaration envelope is not completed filled in with the voter’s signature, address, and/or date of execution.” During oral arguments, Trump campaign lawyer Jonathan S. Goldstein declared his suit was not accusing Democrats, voters, or the board of elections of fraud, but that there was merely a failing to enforce a technical rule about signatures:

GOLDSTEIN: Your Honor, accusing people of fraud is a pretty big step. And it is rare that I call somebody a liar, and I am not calling the Board or the DNC or anybody else involved in this a liar. Everybody is coming to this with good faith. The DNC is coming with good faith. We’re all just trying to get an election done. We think these were a mistake, but we think they are a fatal mistake, and these ballots ought not be counted.

THE COURT: I understand. I am asking you a specific question, and I am looking for a specific answer. Are you claiming that there is any fraud in connection with these 592 disputed ballots?

GOLDSTEIN: To my knowledge at present, no.

THE COURT: Are you claiming that there is any undue or improper influence upon the elector with respect to these 592 ballots?

GOLDSTEIN: To my knowledge at present, no.

THE COURT: Does it make a difference whether a claim of irregularity or technical noncompliance with the election code is made with or without an accompanying claim of fraud or improper influence?

GOLDSTEIN: It does not. I mean, to claim the technical defects are immaterial, which is in some sense some of the thrust of what the DNC argued, is really to misperceive what is going on in the election code. The election code is technical.

It is one thing to fume on Twitter that there is a sinister effort to steal an election; it is another thing to assert that sweeping claim in a court of law, before a judge, under penalty of perjury and/or disbarment.

Elsewhere in Pennsylvania, the Trump campaign is hoping the U.S. Supreme Court will reconsider an earlier decision that allowed Pennsylvania election officials to accept ballots that arrive up to three days after Election Day. The department of state declared Tuesday, “about 10,000 mail-in ballots were received by counties in the three days after polls closed — ballots that are the subject of a U.S. Supreme Court challenge by Republicans — while counties issued about 94,000 provisional ballots to voters, although the department didn’t say how many have been counted.” Even if a court were to invalidate all ballots that arrived after Election Day in the near future, and even if every last one of those ballots voted for Biden, it would not be enough to overcome Biden’s current 45,000-vote margin.

In Arizona, the Trump campaign filed a suit alleging Maricopa County poll workers “incorrectly rejected” votes cast in person on Election Day; this is the suit regarding stray marks on the ballot that the Trump campaign fears were registered as “overvotes,” or votes for more than one candidate. But only 180 ballots county-wide registered as overvotes. Biden won Maricopa County by more than 164,000 votes. Earlier this week, Maricopa County completed its hand-count audit, and declared they have a 100 percent match, overseen by both Democrats and Republicans.

You cannot change a Biden lead of more than 12,000 votes by invalidating or disputing a few hundred votes.

Meanwhile, in Nevada, Secretary of State Barbara Cegavske, a Republican, said her “office, in conjunction with members of the Election Integrity Task Force, continues to investigate all creditable allegations of fraud related to the 2020 general election. The Secretary of State has a sworn duty to ensure all election laws, both federal and state, are enforced. When someone is found to have violated any of these laws, they will be referred to the appropriate agency for prosecution.”

But the statement from her office continued, “it is difficult for the Secretary of State’s office to quantify how many voter fraud investigations are ongoing or how many voter fraud complaints have been received,” because “the term voter fraud is extremely broad and potentially includes illegal activities beyond what the public normally thinks about when referring to voter fraud” and “a single complaint or single investigation may include multiple allegations of fraud or multiple suspects.”

Cegavske’s office noted: “Many voter fraud complaints lack any evidence and are more complaints about process or policy. Including these complaints in the number of voter fraud complaints runs the risk of overstating the prevalence of creditable voter fraud complaints.”

The Trump campaign is not done. In the U.S. District Court for the Western District of Michigan, they filed a second lawsuit with “more than 230 pages of affidavits, some handwritten, attesting to the irregularities.” Perhaps the most notable, and undisputed error came in Antrim County in the northwestern corner of the state’s “mitten,” population 23,365, about as reliably Republican as Michigan counties come.

Initially on Election Night, the county’s results showed Biden winning by a wide margin, a result surprising to the point of implausibility. Michigan secretary of state Jocelyn Benson offered an explanation:

The erroneous reporting of unofficial results from Antrim county was a result of accidental error on the part of the Antrim County Clerk. The equipment and software did not malfunction and all ballots were properly tabulated. However, the clerk accidentally did not update the software used to collect voting machine data and report unofficial results. The correct results always were and continue to be reflected on the tabulator totals tape and on the ballots themselves. Even if the error in the reported unofficial results had not been quickly noticed, it would have been identified during the county canvass.

In the revised numbers, Trump won Antrim County by about 2,500 votes.

But if you still find all of this unconvincing, you could turn to the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, which works “collaboratively with those on the front lines of elections — state and local governments, election officials, federal partners, and vendors — to manage risks to the nation’s election infrastructure.” Their assessment:

The systems and processes used by election officials to tabulate votes and certify official results are protected by various safeguards that help ensure the accuracy of election results. These safeguards include measures that help ensure tabulation systems function as intended, protect against malicious software, and enable the identification and correction of any irregularities.

Every state has voting system safeguards to ensure each ballot cast in the election can be correctly counted. State procedures often include testing and certification of voting systems, required auditable logs, and software checks, such as logic and accuracy tests, to ensure that ballots are properly counted before election results are made official. With these security measures, election officials can check to determine that devices are running the certified software and functioning properly.

Chris Krebs, the director of CISA, tweeted Saturday: “Seeing [disinformation] that some isolated voting day issues are tied to some nefarious election hacking and vote manipulation operation. Don’t fall for it and think twice before sharing! Check out Rumor Control for more info on the security safeguards built into elections.”

Note that this agency reports to DHS, which reports to the president.

ADDENDUM: In case you missed it yesterday, a lot of these late-breaking House races are, so far, breaking the Republicans’ way. Also yesterday, Senator Thom Tillis won his race in North Carolina, and this morning, Decision Desk HQ projects Dan Sullivan winning another term in Alaska, meaning the Republicans will have at least 50 seats in the Senate next year. It all comes down to Georgia now.


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