vision 2020

Trump Scrambles for Legal Strategy to Stop Defeat

Rudy and Trump’s other lawyers appear to have too little, too late in the way of evidence to stop vote-counting. Photo: Matt Slocum/AP/Shutterstock

In the wee hours of November 4, President Trump coupled his ludicrous victory claim with threats to take legal action to stop votes from being counted (or in his counterfactual description, being cast) in states where he was on a trajectory to defeat. In particular, he alluded to a preelection legal skirmish that aimed to get the U.S. Supreme Court to intervene in decisions by North Carolina and Pennsylvania to extend their deadlines for the receipt of mail ballots postmarked by Election Day. But this and other legal stratagems by the president’s campaign are looking like a matter of too little and too late.

Last month, the Supreme Court refused to tell Pennsylvania and North Carolina what to do with their mail-ballot deadlines, but three conservative justices indicated that they would’ve liked to slap them down just before Election Day. Getting the Supreme Court to reverse course on the issue, which Republicans are still attempting to do, would require some help from new Justice Amy Coney Barrett. More to the immediate point, it’s likely mail ballots received by Election Day in Pennsylvania will be sufficient to give Joe Biden a victory there; state election officials prudently decided to segregate ballots received later precisely because they anticipated what Republicans are now trying to do. So even if the Supreme Court disallowed the mail-ballot extension in that state, there would be no grounds to throw out the baby (a Biden win) with the bathwater (the disputed mail ballots).

The legal theory that might support a challenge to the mail-ballot deadlines in North Carolina and Pennsylvania isn’t available in other states where Team Trump is frantically trying to stop or alter the count (Georgia, Michigan, Nevada, and Wisconsin), since they all had firm Election Day deadlines. Possibly grasping at straws, though, the Trump campaign has filed suit in Georgia alleging a violation of the deadline in one county, as The Hill reports:

The Trump campaign on Wednesday filed a lawsuit that seeks to require election officials in Chatham County, Ga., to identify and separate allegedly late-arriving mail ballots, presumably so the votes can be more easily tossed if the campaign ultimately prevails in its legal challenge.

Included with the lawsuit is an affidavit from a registered poll watcher who says he witnessed 53 mail ballots that arrived after the state’s 7 p.m. Election Day deadline being mixed in with timely ballots.

If Biden moves ahead in Georgia, it will mostly be on the basis of mail ballots cast in metro Atlanta, and 53 votes in Savannah won’t much matter. But there, as elsewhere, the Trump campaign is going with any pretext it can find to challenge the emerging results.

In Michigan and in Wisconsin, Team Trump is pursuing good old-fashioned recounts. But except in elections decided by literal handfuls of votes, recounts rarely if ever lead to reversals of fortune, as FiveThirtyEight noted back in 2016:

Out of 4,687 statewide general elections between 2000 and 2015, just 27 were followed by recounts, according to data compiled by FairVote, a nonpartisan group that researches elections and promotes electoral reform. Just three of those 27 recounts resulted in a change in the outcome, all leading to wins for Democrats.

In Michigan, additionally, the Trump campaign is trying to stop vote-counting statewide on grounds that one observer was allegedly prevented from viewing the count in one jurisdiction, as the Detroit Free Press reported:

The lawsuit alleges that a poll challenger from Roscommon County — a small, rural county in northern Michigan — was excluded from viewing the counting of the absentee ballot counting board.

The man who filed the lawsuit with Trump, Eric Ostergren, said he is from Roscommon but served as a poll challenger in Oakland County. The county received hundreds of thousands of absentee ballots, as did other large counties across the state. Ostergren alleges he was inappropriately removed from a site where he was watching absentee ballots being counted. 

The problem is that Biden is already ahead in Michigan with remaining mail ballots expected to skew very heavily Democratic. So stopping the vote count, if it happens, will at best delay the inevitable.

Aside from the renewed effort to get the Supreme Court to retroactively reverse extended mail-ballot deadlines, the Trump campaign has filed a flurry of additional suits to stop or slow the count in Pennsylvania, which is rapidly dooming the president’s reelection bid. NBC News observes:

A Republican candidate for Congress, Kathy Barnette, sued in federal court Tuesday claiming that county officials in Montgomery County, in the suburbs of Philadelphia, illegally handled mail ballots ahead of Election Day.

The county said in a hearing Wednesday morning that its efforts had allowed 93 voters to fix mail ballot errors, such as a missing signature or a missing privacy sleeve. None of the ballots had been opened, and the county defended its processes as legal and transparent …

Five Republicans, including a candidate for the Pennsylvania House, Joseph Hamm, and Republican Rep. Mike Kelly, who is up for re-election in the state’s 16th Congressional District, sued Secretary of State Kathy Boockvar in state court over allowing voters with defective mail ballots to cast provisional ballots in person in an attempt to have their votes count.

None of these claims is likely to involve enough ballots to affect the statewide count; they are mainly dilatory efforts to head off a national Biden victory claim while Trump scrambles for a strategy. NBC collected a pungent quote from Loyola Law School professor Justin Levitt about the overall legal effort by the president’s lawyers:

“If this is a legal war, he’s arming up with water balloons,” Levitt said, adding that litigation affects an election’s outcome only when there’s a razor-thin margin in a single state. “Don’t expect the litigation to stop, but don’t expect it to work, either,” he said.

Reporters bored with the details of these courtroom duels are sometimes puffing it all up via descriptions of the vast armies of legal talent being mobilized by both sides, like this bit of hype from John Solomon:

President Trump’s campaign on Wednesday began assembling an all-star legal team to file challenges to election regularities in several battleground states, starting with a Court of Claims lawsuit in Michigan.

Among the lawyers the president is activating include his private attorney Jay Sekulow, who will help campaign lawyers with matters before the Supreme Court as well as former New York City Mayor Rudy Giuliani and former Florida Attorney General Pam Bondi, officials said.

Sidney Powell, the lawyer for former National Security Adviser Michael Flynn, may also be called upon, officials said.

Sorry, but Rudy and his colleagues cannot make a silk purse out of a sow’s ear unless the Trump campaign and its minions come up with more and stronger evidence of irregularities that really matter. And they are quickly running out of time.

Trump Scrambles for Legal Strategy to Stop Defeat