By Ian MacDougall - ProPublica
An election case hearing on Wednesday was a miniature reflection of the challenge facing President Donald Trump's campaign as it prepares for what could become an all-out legal attack on presidential election results in critical states.
It's easy to file a wrongdoing lawsuit - in this case, Pennsylvania is alleged to have broken the law by allowing those who voted with defective mail ballots to correct them - but it's much more difficult to present wrongdoing evidence or a compelling legal argument.
[Results of the presidential elections in the United States 2020]
"I don't understand how the integrity of the elections was affected
," US District Judge Timothy Savage said repeatedly during the hearing.
(Whatever the judge's ruling, the case is unlikely to have a significant effect, as only 93 ballots are being challenged, according to a county elections official.)
"A lawsuit with no verifiable facts proving a constitutional violation is just a tweet with no impact," said Justin Levitt, a professor at Loyola University School of Law in Los Angeles.
Levitt noted that judges have generally ignored the bustle of the contest and the Twitter bluster of President Donald Trump.
"In reality, they have demanded facts and have not spoken out on the passionate demands of fraud or voter suppression," Levitt said.
"They have not confused public relations with the basis of the litigation, and I hope that continues to happen."
[
Judges dismiss two of the lawsuits filed by the Trump campaign to stop the vote counting
]
If Levitt is right, it may bode ill for the lawsuits presented in this election.
The number of cases is starting to increase rapidly
, but the lawsuits will not do much good unless, as in the 2000 presidential election, the contest ends up being so close that the outcome depends on a very narrow margin of votes in one or more of the essential states for the victory of a candidate.
One of the few certainties is that
we may not see an immediate repeat of the
Bush v.
Case
.
Gore
that Trump seems to have in mind.
Hours after the vote ended, in a 2 am speech that sparked bipartisan criticism, Trump falsely declared that he had won the election, and baselessly described the ongoing vote count as "a fraud of the American public."
"We will go to the Supreme Court," he told his supporters.
"We want all voting to stop."
Trump is famous for being a litigator, but he is not a lawyer nor does he seem to understand that, apart from a small class of cases (territorial disputes between states, mostly), lawsuits do not originate in the Supreme Court.
The Trump campaign would have to file a lawsuit with a state or federal court and, eventually, appeal an adverse ruling to the higher court.
Along the way, as the anecdote from the Pennsylvania court suggests, the campaign would have to present evidence to back up its claim and, as of yet, there is no evidence of fraud in the ongoing counts, which often continue beyond the night. of the elections.
The legitimate vote count is not fraud, despite what the president claims on Twitter.
When there is a clearer picture of the outcome of the presidential election in key states such as Pennsylvania,
either party may file litigation in state courts to challenge the legality of certain ballots or request a recount
, a process described in the ProPublica guide. on electoral laws and demands related to elections.
During a conference call on Wednesday, several Trump campaign officials informed their supporters that they believed they had entered "counting territory" in Wisconsin and Michigan, according to The Washington Post.
That same day, in a statement to The New York Times, Bill Stepien, Trump's campaign manager, indicated that they planned to call for a recount in Wisconsin "immediately."
Thousands of people protest peacefully in Chicago to demand that all votes be counted
Nov. 5, 202001: 14
On Wednesday afternoon, the campaign filed suit in a Michigan state court, requesting that elections officials be ordered to stop opening mailed ballots and tabulating votes until campaign officials are granted a "Meaningful access" to observe the process.
The campaign statement about the lawsuit did not explain how election officials limited their access
, nor did
it explain
why the campaign believes those restrictions violate state law.
The campaign also called for "reviewing ballots that were opened and counted when we did not have meaningful access," a possible preview of a search for technicalities that could allow Trump's team to try to invalidate ballots cast in favor of Democrats.
The campaign filed a similar petition Wednesday in Pennsylvania state court.
Similar lawsuits filed by Republicans in Nevada and elsewhere have not been very successful
.
In these, the campaign basically asked for unlimited access to vote counting centers.
A judge who dismissed such a lawsuit in Nevada noted that Trump campaign officials "appeared to be requesting unlimited access to all areas of the vote counting area and observation of all information related to the tabulation process." .
That went beyond what state law requires, he wrote, and granting the request would delay vote counting and impede social distancing protocols.
Generally, state electoral codes allow campaign officials to observe the counting of votes, but not without reasonable restrictions.
Trump campaign officials
also announced that his legal team had challenged, or will challenge, the ballots of North Carolina and Georgia
, traditional red states that tend to vote for the Republican Party and remain too close to declare a winner.
Recount requests or vote challenges, common after close elections, are unlikely to make a difference in the outcome.
"Counts rarely change voting totals much,"
said Joshua Douglas, a law professor at the University of Kentucky, and the same is true of challenges to ballot validity.
That fact definitely will not prevent litigation from being filed.
[
The growth in support for Trump among Hispanic voters should come as no surprise.
We explain why
]
At the moment, taking into account that the situation changes by the hour, these are the active demands that could affect the election.
Most are those that remain of more than 300 lawsuits that were filed before the elections in 45 states, Puerto Rico and the District of Columbia, according to the database managed by the Healthy Elections Project. joint effort of researchers from Stanford University and the Massachusetts Institute of Technology.
The Latino vote broke record numbers during these presidential elections in the United States
Nov. 5, 202002: 16
Elections could be determined in Pennsylvania, a crucial state
whose results may not be known until later this week;
Likewise, five lawsuits are currently pending against the state electoral boards, in both state and federal courts.
In September,
the Pennsylvania Supreme Court ruled that state election officials must accept
vote-by-mail
ballots
that arrive up to three days late, as long as they are postmarked with an Election Day date or lack a postmark.
As in other states, the goal was to prevent postal service delays from disenfranchising an unprecedented number of Americans who planned to vote by mail due to the coronavirus pandemic.
Republicans appealed the ruling to the Supreme Court, which last week declined to rush a pre-election decision.
Before the election, Trump ridiculed the Supreme Court's refusal to intervene as a "terrible decision."
"We will move forward that same night - as soon as the elections are over - we will enter with our lawyers," he told reporters gathered on the runway last Sunday, just before a campaign rally in Hickory, North Carolina.
[How can Biden win? How can Trump win? There may also be a tie]
The president's forecast was inaccurate as to date, but on Wednesday afternoon, his campaign asked the Supreme Court to be allowed to intervene in the litigation (which was brought by the Pennsylvania Republican Party).
The next step is for the judges
, who are still pondering whether to accept the case.
Three of them - Samuel Alito, Neil Gorsuch and Clarence Thomas - indicated last week that the court could take the case and invalidate the late ballots even after the election, and Pennsylvania election officials agreed to store the ballots separately in the event that the superior court orders that they be discarded.
The fate of the lawsuit could depend on the views of new Judge Amy Coney Barrett, who was not involved in last week's decision.
As noted, Republicans sued Pennsylvania (in fact there are two cases, one in state court and one federal court) focusing on efforts by state election officials to alert voters who submitted defective vote-by-mail ballots. - for example, those that did not include the "confidentiality envelope," a requirement that electoral rights advocates fear could invalidate an unusually high volume of ballots - so that voters could correct the error or submit a provisional ballot.
Election officials have defended their practices by saying they comply with state law
.
As noted in connection with the federal case, the judge expressed skepticism about the claim.
An initial meeting for the second litigation, directed against this practice at the state level, would be held Wednesday afternoon.
The Trump campaign said it would file a lawsuit in Pennsylvania federal court later that day to challenge the decision it says election officials made to extend the deadline for first-time voters to provide identification.
Joe Biden: "Every vote must be counted, no one is going to steal our democracy from us"
Nov. 5, 202002: 09
In Nevada,
late
Tuesday,
that state's Supreme Court rejected a last-minute effort by Republicans
to temporarily block certain aspects of vote-by-mail ballot processing in Clark County, a stronghold of Democratic voters and headquarters. from Las Vegas.
This includes the use of machines to speed up the process of collation of voters' signatures and state records.
[Arizona, Nevada and Georgia: If your vote by mail was rejected, you can still correct it]
The court agreed to hear the case expeditiously, and may make a decision on it early next week.
However, its verdict raised doubts about the lawsuit's core claims.
The plaintiffs
"have not shown a sufficient probability of success,"
the state's highest court wrote in the ruling.
The lower court had determined that his "allegations lacked evidentiary support, and his request for redress before this court is not supported by an affidavit or registration materials that support many of the factual statements contained therein."
The ruling also noted that the plaintiffs had also failed to identify "any mandatory legal duties" that the election officials "appeared to have ignored", and that they had failed to counter certain key findings of the district court.
Biden has a sizable lead in Minnesota
, but if it were to start to narrow, a ruling a federal appeals court issued last week could have implications for the outcome of the presidential vote in that state.
With a 2-1 ruling reflecting ideological divisions,
the court ordered state election officials to separate the late ballots
;
It also indicated that it was likely to invalidate them when ruling the legality of the post-election day waiting period agreed upon by election officials due to the large number of mail-in ballots expected due to the coronavirus pandemic.
[Follow our full coverage of the 2020 presidential election]
Texas, which sits comfortably in Trump's column, is the reverse of Minnesota.
However, a last-minute effort by Republicans to scrap car-delivered ballots is still active in Harris County, where Houston and much of the state's Democratic electorate are located.
A district judge in Texas ruled against the plaintiffs and on Monday a federal appeals court refused to block the drive-by vote on Election Day.
However,
Republicans have not ruled out the possibility of requesting a review
by the full court of appeals or taking their case to the Supreme Court of the United States.
(In a different case, the Texas Supreme Court refused to block the drive-by vote.)
However, on Tuesday, Harris County officials closed nine of the ten car polling sites to minimize the risk of large amounts of votes being thrown out if the plaintiffs won.
Lastly,
North Carolina is not seen as the place where the presidential election will be decided
, but a close race for the Senate in that state has important implications for control of that chamber in January.
Last week, the Supreme Court refused to temporarily block a waiting period for late ballots, although the case continues to advance in lower federal courts and could return to higher court.
All three judges who expressed skepticism about the waiting period in Pennsylvania raised similar questions about the legality of the one in North Carolina.
Translation by Mati Vargas-Gibson, edition by Ivette Leyva (ProPublica).
Review by Juliana Jiménez and Francesco Rodella (Noticias Telemundo).
