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Why These New Election Lawsuits Will Fail

The president’s lawyers may try to tie up the election in courts, but the courts aren’t cooperating.

November 6, 2020

Even in the midst of a pandemic and attempts to make voting harder, unhealth­ier, and less access­ible, voters have risen above the fray and turned out in record numbers. Now our elec­tion offi­cials are doing their jobs and count­ing the votes. Still, lawyers for the pres­id­ent have been throw­ing everything against the walls of our court systems in the hopes of stop­ping them. 

To be clear, it does not appear that any of these lawsuits will impact the outcome of the elec­tion. But as a lawyer for the voters, I would be the first to say it isn’t about elect­oral outcomes — it is about voting rights. And it must be said that these lawsuits thus far are not about protect­ing the integ­rity of the process, but rather at divert­ing from it.

One common thread we are seeing among these lawsuits — and why we do not expect them to impact outcomes — is that these lawsuits object to very normal processes.

One group of lawsuits takes aim at the dead­lines for receiv­ing mail ballots. Many states have specific­ally provided that ballots will be accep­ted as long as they are mailed or post­marked on or before Elec­tion Day (as required by state law) and received within a certain number of days there­after.

In Pennsylvania and North Caro­lina, a state court order and the state elec­tions board respect­ively clari­fied that ballots arriv­ing by a specific date after Novem­ber 3 would be accep­ted as long as they were mailed in time (such clari­fic­a­tions are appro­pri­ate under state and federal law). Lawyers for the Trump campaign and other GOP oper­at­ives have tried to roll back the dead­line in these states, and their efforts have been rejec­ted thus far by courts up to and includ­ing the U.S. Supreme Court.

Other states require that ballots be received before polls close on Elec­tion Day. In a now dismissed chal­lenge in Geor­gia, lawyers for the Trump campaign alleged that all of 53 possibly late arriv­ing ballots were placed on the same table with timely arriv­ing ballots by the Chatham County Board of Elec­tions. The judge concluded that there was “no evid­ence” of fraud or comming­ling of late and on-time arriv­ing ballots.

Another set of lawsuits from the Trump campaign alleges that their poll watch­ers were not given proper access to view the ballots. These lawsuits want count­ing to stop. There’s no basis to ask that ballots be thrown out, because there is no sugges­tion that any voter did anything wrong. On Wednes­day, the campaign filed one such lawsuit in Michigan on behalf of an observer who claims to have not had appro­pri­ate access, but the lawsuit was so short on details that the judge said she planned to deny the request to stop the count­ing.

And then there are the lawsuits in Pennsylvania. As of Thursday even­ing, the Trump campaign’s lawyers had filed no fewer than four and were trying to inter­vene in a Pennsylvania case already before the U.S. Supreme Court.  

All four of these new Pennsylvania suits chal­lenge vari­ous ballot count­ing proced­ures. Two concern poll watcher access, and a third chal­lenges guid­ance issued by the Pennsylvania secret­ary of state allow­ing voters to provide required iden­ti­fic­a­tion inform­a­tion for an addi­tional three days beyond what is required by stat­ute. The fourth alleges that ballots with incom­plete outer envel­opes are being coun­ted. None of these lawsuits allege that the voters who cast these ballots are ineligible people who are are voting. Two of the four Pennsylvania suits specific­ally target Phil­adelphia.

More lawsuits are threatened. After two lawsuits in Nevada petered out, a third complaint was filed on Thursday night.

Our judi­ciary is supposed to protect the right to vote, but we’re not seeing a lot respect for the role of the judi­ciary. Federal and state courts are getting tied up in disputes that other courts have spoken on or that grown-ups should be able to work out (or both). In an example in Pennsylvania, a request was filed one day in federal court, then effect­ively with­drawn when it did not look like the plaintiffs were going to get what they wanted, and the same issue was already being litig­ated in a state court case. This is not about process or fraud preven­tion — it is a distrac­tion and a waste of judi­cial resources.

Most import­antly, though, it is not going to work. The path forward is to ignore the noise and disin­form­a­tion. The basis of Amer­ican demo­cracy is that we pick our lead­ers — our lead­ers do not pick their voters. And there’s noth­ing that frivol­ous lawsuits from any polit­ical candid­ate can do to change that.