A brief guide to the Trump campaign's lawsuits
As of this writing, the presidential election has still not been decided. But, unquestionably, Wednesday was a better day for Joe Biden. In the afternoon, media outlets declared him the winner of Wisconsin and Michigan. By Wednesday evening, Biden had dramatically narrowed Trump's margin in Pennsylvania and Georgia.
Crucially, Biden maintained a lead in Arizona and Nevada. (Fox News and the AP declared Biden the winner of Arizona, but the race remains close.) If Biden prevails in those two states, he will reach 270 electoral votes — enough to become the next president.
The Trump campaign spent the day filing lawsuits — in Michigan, Georgia, and Pennsylvania. The Associated Press describes the lawsuits as "laying the groundwork for contesting the vote in those battleground states."
That sounds ominous. It suggests that even if Biden were to be declared the winner, these lawsuits could keep the outcome in doubt.
But if you look at the details of these cases, they are far less menacing. They appear mostly designed to generate headlines that Trump is contesting the outcome, rather than cases that could determine the outcome of the race.
Michigan: America's most boring videos
In Michigan, the Trump campaign filed a lawsuit alleging that it was not able to properly observe the counting of "absent voting" ballots. It says one credentialed observer, Eric Ostergren, was "excluded from the counting board during the absentee voting process." No further details about Ostergren's situation were provided. But it does not appear to be a widespread problem. The AP reported that "poll watchers from both sides were plentiful Wednesday at one major polling place in question — the TCF Center in Detroit."
But much of the Trump campaign's Michigan lawsuit involves access to videos. Specifically, the Trump campaign notes that Michigan law requires "ballot drop-off boxes to be monitored by video surveillance." The lawsuit argues that Michigan's Secretary of State Joselyn Bensen is breaking the law by not giving the Trump campaign access to the video of the drop boxes.
Notably, the Trump campaign does not cite any legal authority that says observers are entitled to view these videos. The campaign quotes the entire section of Michigan law that details the rights of campaign observers. There is no mention of watching videos.
The campaign is asking the court to order all counting of absentee ballots to stop until its observers are provided these videos.
It's a largely incoherent legal argument. But suppose the Trump campaign was successful in getting access to these tapes. What would happen then? What exactly would the campaign be looking for? And even if the campaign were to identify something suspicious, how would these videos be used to invalidate even a single vote?
Trump is asking for a pause in vote counting, which he's unlikely to receive. But if that happened, what good would it do him? As of Wednesday evening, Biden's lead in Michigan was 120,000 votes.
Georgia: 56 votes
In Georgia, absentee ballots must arrive by 7:00 PM on election day to be counted. (A court extended this deadline, but that ruling was stayed by the 11th Circuit Court of Appeals.) The Trump campaign alleges that, sometime on Wednesday, one of its poll watchers "witnessed absentee ballots that had not been properly processed apparently mixed into a pile of absentee ballots that was already set to be tabulated." The Trump campaign does not allege these ballots arrived after 7:00 PM. Rather, the campaign says "[w]hether the absentee ballots had been received by the [Chatham County Board of Elections] prior to the close of the polls at 7:00 P.M. on Election Day… remains unknown." There are a grand total of 56 ballots at issue.
The Trump campaign is asking the court to order the Chatham County Board of Election to "collect, secure, and safely store all absentee ballots received by the CCBE after 7:00 P.M. on Election Day." That's it.
To be clear, there is no evidence that anyone in Georgia is counting ballots received after 7:00 PM on Election Day and no evidence that the 56 ballots arrived after Election Day.
Regardless, Trump leads in Georgia by about 32,000 votes, with about 87,000 votes left to be counted. Most of the outstanding vote is from Democratic areas, so it's possible either candidate could win. But it's highly unlikely that the lawsuit filed by the Trump campaign will have any impact.
Pennsylvania: Return to SCOTUS
In Pennsylvania, the Trump campaign filed a motion to join a suit that is already in progress. The case involves a decision by the Pennsylvania Supreme Court that extended the deadline for mail-in ballots to be received. Typically, the deadline in Pennsylvania is Election Day. But, in light of the pandemic, the Pennsylvania Supreme Court extended the deadline by three days, provided the ballot was mailed by Election Day.
The Pennsylvania GOP asked the United States Supreme Court to stay the decision. But, on October 19, "the justices denied, without explanation, a request by Republicans to put the Pennsylvania Supreme Court’s ruling on hold." At the time, the court was split 4-4, leaving open the possibility that, with the addition of Amy Coney Barrett, the court could reach a different outcome.
The Pennsylvania GOP has, in fact, returned to the United States Supreme Court. This time, it's asking the court to rule on the merits of the case. The Trump campaign is asking to join that lawsuit. So this isn't new litigation. It involves an unusual legal theory that only a state legislature can be involved in setting the rules for an election. It is, however, more serious than the other cases filed by the Trump campaign today.
But it has nothing to do with stopping the count that is taking place right now in Pennsylvania. The ballots currently being counted are the mail-in ballots that arrived on Election Day or earlier. These ballots have been overwhelmingly Democratic and have cut Trump's lead in the state, as of Wednesday evening, from double digits to less than 200,000 votes. Some observers believe that Biden will ultimately overtake Trump in the state. If that happens, this lawsuit won't matter.
It's also unclear that there are a significant number of ballots that will arrive after Election Day. Allegheny County, one of the state's largest, received just 500 mail-in votes on Wednesday.
The only good thing from Trump's Presidency is I've learned so much about our laws and elections. And, Judd's newsletters have made it easier to understand.
Thanks for your analysis. So nice to read a sensible explanation of what’s going on with the flurry of BS being spread by the Trump contingent.