As was to be expected, Trump is doing everything that he can to raise suspicions about the election process in an effort to reverse the results in those states that he has lost and those he fears he might further lose. The chief weapon in his arsenal is the legal process and already new lawsuits have been filed to add to those that were filed even before election day.
Post-election litigation is normal. Lawsuits are always filed on election day and the days after in response to issues such as equipment malfunctions, printing errors and polls not opening on time.
Usually, they receive little attention. This year, they are under more intense scrutiny because the president has spent the year making frequent, baseless claims about election fraud.
For one of these routine cases to affect the outcome of the election, the ballots being contested would need to be both (a) big enough in number to determine the state’s result (for example, a suit which concerns 50,000 votes in a state a candidate won by 30,000 votes) and (b) in a state decisive for the election result.
As of Wednesday evening, election law experts said none of the lawsuits filed appeared to meet both these qualifications. “These case don’t seem to be very strong, they also don’t seem to be significant as a matter of votes,” said Paul Smith, vice-president for litigation and strategy at the Campaign Legal Center.
That could change as counting continues.
For ProPublica, Ian McDougall looks at all these and other potential cases and where they may end up. He thinks that Trump does not really understand how the legal system works and what judges look for in adjudicating cases.
A hearing on Wednesday in an election case captured in miniature the challenge for the Trump campaign as it gears up for what could become an all-out legal assault on presidential election results in key swing states: It’s easy enough to file a lawsuit claiming improprieties — in this case, that Pennsylvania had violated the law by allowing voters whose mail-in ballots were defective to correct them — but a lot harder to provide evidence of wrongdoing or a convincing legal argument. “I don’t understand how the integrity of the election was affected,” said U.S. District Judge Timothy Savage, something he repeated several times during the hearing. (However the judge rules, the case is unlikely to have a significant effect; only 93 ballots are at issue, a county election official said.)
“A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee,” said Justin Levitt, a professor at Loyola Law School in Los Angeles.
Levitt said judges by and large have ignored the noise of the race and the bluster of President Donald Trump’s Twitter feed. “They’ve actually demanded facts and haven’t been ruling on all-caps claims of fraud or suppression,” Levitt said. “They haven’t confused public relations with the predicate for litigation, and I would expect that to continue.”
If Levitt is right, that may augur poorly for the legal challenges to the presidential election. Either way, the number of cases is starting to rapidly increase. But lawsuits will do little good unless, as in the 2000 presidential election, the race winds up being so close that it comes down to a very thin margin of votes in one or more must-win states.
McDougall then walks us through the various lawsuits that are currently underway and the potential new ones.
But whether these lawsuits have any merit or not is irrelevant to Trump. He has said repeatedly that the only way that he can lose is because of cheating. Whether he truly believes that or not is immaterial. He has to take legal action to persuade his cult members that the results are fraudulent, so he will file as many lawsuits as he can. Of course, there are people with legal knowledge among his aides who would know better but Trump only listens to sycophants like Rudy Giuliani who tell him only what they think he wants to hear.
The question is whether his attorney general Bill Barr will go along with this and have the department of justice be a party to these suits. So far Barr has shown a disturbing willingness to act as is he were Trump’s personal attorney rather than the principal legal officer of the country. But if he thinks that these cases are likely to lose and that hence Trump is on the way out, he may decide to bail out early rather than go down with that sinking ship.