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Analysis

Why These New Election Lawsuits Will Fail. Still.

There’s no evidence of fraud, only general accusations.

November 17, 2020

On Novem­ber 6, I wrote that the flurry of lawsuits filed by Pres­id­ent Trump’s campaign were unlikely to have an impact on the elec­tion and laid out the reas­ons why. Since then, more lawsuits have been filed by the Trump campaign and other sympath­izers, like the Repub­lican National Commit­tee and True the Vote.

In total, 31 such suits have been filed since Elec­tion Day thus far, 18 of them since my prior piece was published. These lawsuits are damaging notwith­stand­ing their fatal flaws because they sow mistrust in the process.

Early cases primar­ily centered around poll watcher access and the processing and count­ing of absentee ballots, includ­ing chal­lenges to ballots post­marked by Elec­tion Day but arriv­ing within a specified time­frame there­after. The newest batch of lawsuits can be roughly grouped into two categor­ies: those related to the count­ing of indi­vidual ballots and those that chal­lenge certi­fic­a­tion of a state’s pres­id­en­tial elec­tion results.

The first category primar­ily consists of cases seek­ing to prevent the count­ing of specific ballots for vari­ous reas­ons, such as voters forget­ting to print their name next to their signa­ture on the ballot envel­ope.

Six such cases have been filed in the past week — five by the Trump campaign target­ing Phil­adelphia County and one by a GOP state senat­orial candid­ate target­ing Allegheny County, Pennsylvania. The five Trump suits seek to throw out a total of 8,355 ballots in a state where Trump presently faces a defi­cit of more than 68,000 votes. A state court judge denied all five requests, and the Trump campaign promptly appealed.

A seventh case, based on the “Sharpie­gate” conspir­acy theory, chal­lenged the alleged fail­ure to count ballots that were supposedly unread­able by the elec­tronic tabu­la­tion machines used in Mari­copa County, Arizona. However, on Friday, the Trump campaign’s lawyers took the unchar­ac­ter­istic step of form­ally conced­ing that the number of ballots in ques­tion was too small to change the outcome of the pres­id­en­tial elec­tion, effect­ively ending their case.

The second batch of cases asks to block certi­fic­a­tion and would be more alarm­ing except they simil­arly are not cred­ible. The plaintiffs seek to prevent the certi­fic­a­tion of an entire state’s elec­tion results unless outcomes from “certain counties” are excluded, making the stun­ning argu­ment that every voter should be wholly disen­fran­chised based on vague suspi­cions of fraud and crim­inal miscon­duct by elec­tion offi­cials. Each of those “certain counties,” of course, voted for Pres­id­ent-Elect Joe Biden, and each has size­able racial minor­ity popu­la­tions.

To be clear, these cases present no actual evid­ence of fraud or miscon­duct by voters or elec­tion offi­cials. They merely rehash complaints that poll watch­ers were not given suffi­cient access, and they base­lessly argue that mail voting is inher­ently suscept­ible to fraud and that voter regis­tra­tion data­bases are outdated, so there­fore fraud must have occurred.

In the Wiscon­sin lawsuit, for example, the plaintiffs alleged there had been wide­spread “double votes, votes by non-registered persons, votes by persons who are deceased or moved out of state, and the like,” but had no proof. Instead, they wanted the court to make the state turn over sens­it­ive voter records so that they could go on a fish­ing exped­i­tion. About an hour before a sched­uled court confer­ence on Monday, the Wiscon­sin plaintiffs volun­tar­ily dismissed their case.

In Michigan, the Trump campaign attached 234 pages of poll watcher affi­davits complain­ing about their exper­i­ences at the TCF Center in Detroit, many hand­writ­ten on note­book paper. One poll worker suspec­ted fraud because a major­ity of the milit­ary ballots he viewed were cast for Biden, which conflic­ted with his belief that “milit­ary people tended to be conser­vat­ive.” Another felt intim­id­ated because some poll work­ers — includ­ing a “man of intim­id­at­ing size” — wore Black Lives Matter T-shirts.

It’s hard to take these lawsuits seri­ously when the people respons­ible for them don’t even seem to. Without any evid­ence of fraud or miscon­duct, they are virtu­ally guar­an­teed to go nowhere. The first of these certi­fic­a­tion chal­lenges has already been denied by a circuit court and the Michigan Court of Appeals. On Monday, all four of the True the Vote-backed lawsuits were volun­tar­ily dismissed. And tellingly, in Arizona and Pennsylvania, lawyers for the Trump campaign have dropped out of the very cases they had recently filed.

Despite the fact that these lawsuits have no chance of chan­ging the elec­tion results, they are harm­ing our demo­cracy, improp­erly making our courts the center of what appears to be a bad-faith polit­ical fight. They exacer­bate discord and delay accept­ance by Trump’s support­ers of the actual outcome of the elec­tion. And they besmirch the very elec­tion offi­cials who worked and sacri­ficed to ensure that millions of Amer­ic­ans could safely vote — and have their votes coun­ted — in the midst of a global pandemic.

The lawsuits are not a “Hail Mary” or final hope. They are a delay­ing tactic that will make it harder to recon­cile and heal the divi­sions in this coun­try. They are under­min­ing faith in our systems and distract­ing from efforts to find sens­ible solu­tions to the ways in which our elec­tion processes actu­ally do need to improve and change.

The path forward is to ignore the noise and disin­form­a­tion and to keep focus­ing on our best values. The basis of Amer­ican demo­cracy is that we pick our lead­ers, not the other way around. And there’s noth­ing that frivol­ous lawsuits from any polit­ical candid­ate can do to change that.