Trump campaign sees election lawsuits fizzle
The Trump campaign and its allies on Monday remained engaged in numerous election-related lawsuits more than a week after former Vice President Joe Biden was projected to win the race, even as the scattershot legal effort has fallen far short of its goal of changing the election result.
To date, the litigation has produced very little for the Trump campaign in terms of court wins, and it has unearthed no credible evidence that systematic fraud or ballot tampering tainted the election, as President Trump continues to baselessly claim.
As state and federal vote-certification deadlines draw near, and with Biden’s win moving further beyond the reach of the courts, some election law experts have increasingly begun describing Trump’s legal gambit as a lost cause.
“With an overwhelming number of losses and withdrawals of cases, there is no path for the Trump campaign to overturn the results in a single state, much less states making up more than 36 electoral college votes,” Rick Hasen, a law professor at University of California, Irvine, told The Hill in a statement.
In the weeks leading up to the election, legal experts emphasized that the ultimate impact of any post-Nov. 3 lawsuits would depend on how close the voting result was. If either candidate won comfortably, they said, it would put the race outside the “margin of litigation.”
With Biden projected to win 306 Electoral College votes, the notion that Trump’s legal efforts could reverse the outcome is increasingly at odds with reality.
The Trump campaign’s continued losses in court have put to rest the fears once held by many Democrats: The newly 6-3 conservative Supreme Court might be called upon to decide the election outcome, like it effectively did in the 2000 Bush v. Gore case. Instead, the post-election litigation of 2020 is on track to be more akin to the lawsuits that arose after the elections of 2016, 2012, 2008 and 2004: little-remembered legal skirmishes with no bearing on the final result.
“There have never been lawsuits with a realistic chance of putting the result within the margin of litigation,” said Justin Levitt, a law professor at Loyola Marymount University. “The lawsuits that were viable were about small procedural issues that don’t really matter. And the other lawsuits were never, ever viable.”
According to a tally by The Hill, Trump or his GOP allies have filed more than two dozen lawsuits in key battleground states following the election. The cases have centered on mail ballot extensions, procedures for correcting ballots that initially omitted key information and the rules about observing the vote count, to name just a few issues.
The Trump campaign has only succeeded on the merits in a few narrow cases.
Among the handful of minor victories the Trump campaign notched was a ruling by a Pennsylvania state court last week. The judge found that the state’s Democratic Secretary of State Kathy Boockvar had exceeded her authority by giving voters extra time — from Nov. 10 to Nov. 12 — to supplement incomplete ballots with missing information.
It’s unclear how many raw votes this ruling would ultimately discount. But it was vastly below Biden’s lead of more than 68,000 votes over Trump in Pennsylvania, with more than 98 percent of the vote reported.
“There have been a few other tiny ‘wins,’ ” Levitt said, “like the ability to move observers from 20 feet back to 6 feet back, and a ruling getting Georgia officials to do what they were already doing in not counting 54 late-arriving ballots.”
But in terms of changing the outcome of the 2020 race, he added, “none of them matter.”
The Trump campaign maintained it would keep up the fight in order to ensure voting integrity, and it continued to submit new legal filings on Monday.
“There are legal avenues to pursue to achieve that goal, and when we are successful, we believe the president will be re-elected,” said Jenna Ellis, a Trump 2020 senior legal adviser. “Every American should agree that all legal votes should be counted, and all illegal votes should not be.”
The current litigation with the most votes at stake are federal suits in Pennsylvania and Michigan. But experts doubted the Trump campaign’s chances in those cases and said that even if the campaign prevailed, it would not affect a sufficient number of votes to overturn the election result.
“There would need to be success in three states to reduce Biden below 270 electoral votes,” said Ned Foley, a law professor at Ohio State University. “Thus, for a variety of reasons, as a practical matter, the Trump campaign’s effort to undo President-elect Biden’s victory will be unsuccessful.”
The Trump campaign’s legal effort to date has been marked mostly by failure and legal miscues.
Many of the lawsuits have rested on allegations that do not even qualify as evidence under its legal definition, with many such claims being based on inadmissible hearsay or pure speculation.
In other lawsuits, the Trump campaign or its allies have been rebuffed by the courts — at times drawing stinging rebukes from state judges. In still other instances, the plaintiffs have voluntarily withdrawn their cases.
Last week, the law firm Porter Wright Morris & Arthur moved to withdraw from representing the Trump campaign in a case brought in federal court in Pennsylvania challenging the election results, just days after filing the initial complaint.
Some critics also pointed to Trump’s appointment of Rudy Giuliani to head the legal effort as another sign that the campaign’s court fight was on its last legs.
Some experts said the campaign had ulterior motives for prolonging the court fights that were unrelated to changing its outcome.
“It’s a vehicle to extend the fundraising and soothe an immense ego,” Levitt said. “It’s a way to keep a ‘fight’ in the press, even if the real fight is over.”
Others suspected the delay tactic was an effort to stall the state certification process, in hopes that GOP-held legislatures might engage in a longshot bid to bypass the popular vote and certify the election on Trump’s behalf. But recent reporting described top Republican lawmakers in those states as seeing no role for the legislatures in choosing a winner.
What’s more, the lawsuits, even if they continue for weeks, are not likely to interfere with the state certification process, experts said.
“I do not think any state will stop its certification process, absent a court order requiring them to do that,” said Richard Pildes, a law professor at New York University. “Disappointed candidates cannot seize control over the critical process of reaching a final, official vote count simply by filing lawsuits.”