All the President's lawsuits.

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Today is November 9, 2020. And Joe Biden is the projected winner of the election for President of the United States. The announcement came while the legal team for Donald Trump, led by Rudy Guiliani, gave a press conference at the Four Seasons Total Landscaping (no relation to the hotel) located in a seedy part of Philadelphia adjacent to a dildo store and across from a crematorium.

The view from the podium looked about like this:

The scene was somewhat surreal and seemed to have the flavor of a David Lynch film. And the scene and the content of the voter fraud allegations from the legal team seem to match. Here’s a run-down of the Trump litigation to date. Many of the cases are already dismissed. Several frivolous cases are pending. None of the requested relief in these lawsuits would change the result of the election.

With that said, let’s take a trip down this weird litigious rabbit hole and explore the dust kicked up by the Trump campaign—hopefully without getting any in our eyes. We’ll go state by state.

It is worth noting that no current cases pending on behalf of the Trump campaign allege voter fraud. So for all the campaign’s bluster on the issue they’re not confident enough in the claim to actually adjudicate it.

Pennsylvania

As of November 9, 2020, there is now a case on the docket that at least requests relief that could impact the outcome of the election in Pennsylvania. Specifically, the Trump campaign has asked the United States District Court for the Middle District of Pennsylvania to order the governor of Pennsylvania not to certify election results. The request stems from several complaints that vote-by-mail ballots were permitted to be corrected in some counties but not others—in other words, nothing that could possibly justify stopping the Secretary of State and Governor from certifying the results.

For my readers that aren't attorneys, this is an extreme request of the court. It would be like suing someone on a trespassing claim and then demanding the court award you ownership of the sun.

Republican Party of Pennsylvania v. Boockvar, 20-542; Scarnati v. Pennsylvania Democratic Party, 20-574 -- This is the case about the 4,900 or so ballots received by mail in Pennsylvania between 8 p.m. November 3 and November 6, but postmarked by Election Day. These 4,900 or so ballots are not enough to make up Trump’s 45,000 vote deficit even if they all were counted his way. In any event, Republicans are asking for the opposite relief: they want these ballots not to count. 

SCOTUS could weigh in to rule these ballots should not count but they might pass because the election doesn’t turn on the result. 

This case is interesting and gets its own summary because it could actually reach the U.S. Supreme Court but that’s about as far as “interesting” goes with this case. Two groups petitioned the U.S. Supreme Court that Pennsylvania cannot count ballots received three days after Election Day but were postmarked by November 3. The US Supreme Court issued an order to segregate ballots received after 8 pm on Election Day. The order from SCOTUS is congruent with an already existing order from Boockvar, the Pennsylvania Secretary of State, to segregate those late-arriving ballots pending Republican challenges. Part of the Republican strategy across several battlegrounds included voter suppression efforts. This is another one of those efforts playing out.

Would the relief the President seeks change the outcome of the Presidential election if it were granted? NO. According to the United States Postal Service, only about 4,900 ballots were processed Wednesday and Thursday after election day. The current difference in votes between Trump and Biden is 45,297. Whether these ballots are counted or the people who cast them are disenfranchised won’t make a difference in the outcome.

There’s a smattering of other cases which I’ve organized here by the relief requested and potential to impact results. There are several frivolous cases in Pennsylvania filed by the Trump Campaign or the GOP. They all seek basically the same relief which is to segregate ballots for various reasons from the count and not allow defective ballots to be cured. (Defective ballots are those with minor issues like missing signatures where the voter could easily cure the problem) None of these cases are interesting and none of these cases would change the outcome of the election because, again, Trump is at a deficit to President-elect Joe Bide by tens of thousands of votes. So voter suppression here definitely wouldn’t help Trump.

Arizona

In Arizona, the Trump Campaign is requesting recounts and counts of all votes. It’s their belief that conservative voters were subject to irregularities in the voting process. In one case, Plaintiff Laurie Aguilera alleged that sharpies provided by poll workers would bleed through ballots and cause errors. Because the bubbles were offset from the front and back of the ballots the bleed through didn’t actually cause any errors. Plaintiffs dismissed on their own.

But this wasn’t enough to deter the Trump campaign from filing another frivolous suit. They’ve repackaged the claims from the sharpie case, even going so far as to include declarations from people reasserting sharpies caused problems, and are charging back up the hill again but this time alleging that a “green button” was used by poll workers to override computer rejection of ballots with errors present. The error appears if voters vote for too many candidates in a particular race, or bubble in a candidate’s name and write their name in the write-in. According to the Arizona Elections Procedures Manual, which has the force of law, these ballots are never discarded. They are simply segregated out for adjudication and if the voter’s intent is clear the ballots are counted.

Trump is down by 16,730 votes in the state and this lawsuit only attacks the election process in Maricopa County. While there are millions of people in Maricopa County, the election there broke for Joe Biden and the ballot batches currently coming in now still break for Biden. The relief sought in the complaint is duplicative of the process already outlined in the Procedures Manual, so even if this relief were granted it would do nothing to change the course of the election.

Michigan

The Trump campaign is attempting to appeal a previous dismissal of a frivolous lawsuit. The Trump Campaign demanded poll observers have access to the ballot processing centers. The case was dismissed as moot because by the time they filed the counting was done. But had they reached the merits of the case the Trump campaign did have poll observers present that attempted to challenge every single ballot in an attempt to slow/stop vote counting.

The Trump Campaign filed an appeal. The relief they seek in the appeal is access to surveillance videos of ballot drop off locations. The outcome of this appeal will not change the outcome of the election even if they are granted access to these videos.

But the Trump campaign will need to fix filing deficiencies before the court can consider the appeal: Trump Campaign attorneys failed to submit several documents required for filing an appeal.

Georgia

In a Georgia case, In Re: Enforcement of Election Laws and Securing Ballots Cast or Received after 7:00pm on November 3, 2020, SPCV20-00982, the Trump campaign claimed that a Republican poll observer saw late ballots being illegally added to a stack of on-time ballots. After an evidentiary hearing, a judge found the allegations lacked merit and dismissed the case.

Separately, there’s the issue of a recount. Under Georgia election law, candidates may request a recount if the margin is less than one percent of the total vote—in this election, about 50,000 votes. Biden is ahead by about 10,000 votes, within that margin, and it can be expected that Trump will request a recount. According to the AP’s research, of 31 statewide recounts conducted since 2000, only three have changed the outcome of an election, and in each of those three, the initial margin was less than 300 votes.

Nevada

This is the only state where Trump's allies alleged an issue with a ballot. They picked Stokke, a 79-year-old plaintiff that alleged an issue with a mail-in ballot that was registered as received and verified. She was afforded an opportunity to sign an affidavit to make sure her vote was cast. Her case fell apart in state court. The state claims were repackaged and filed again in federal court in a 6-page complaint. The complaint was light on evidence. Ultimately the Plaintiffs were unable to make mountains from their molehills. Their case was dismissed in federal court as well.

Some final thoughts

These lawsuits are all anti-democratic efforts. It might not be time to start talking about the doom of the Republic, but the rhetoric and the litigation efforts are a push to erode our electoral system. And autocrats only need a fig leaf painted up as if it's a redwood to tell their own history to attack the laws that keep democracies thriving. While I don't think any of these cases or any case that could be brought by the Trump admin would have merit at this point (if they could have they already would have by now) these are far from normal times. I don't think the odds are high American democracy will perish with Trump but they're higher than they ever have been before.

Sleep tight.