Trump campaign presses legal challenges as swing states keep counting

Jane C. Timm
·7 min read

President Donald Trump's campaign pressed its legal blitz across key battleground states Thursday, homing in on Pennsylvania with state judges denying or dismissing lawsuits in Georgia and Michigan.

The race for the White House has come down to just a handful of states — particularly Pennsylvania, Nevada, Georgia and Arizona, which are all too close to call, according to NBC News. NBC News has projected that Joe Biden has won Michigan and is the apparent winner in Wisconsin, giving the former vice president a narrow lead over Trump. But both remain shy of the 270 delegates needed to win the White House, raising the stakes in the states that remain outstanding, particularly Pennsylvania, with its 20 Electoral College votes.

The president and his allies have repeatedly and falsely suggested that the ongoing count of eligible ballots is a sign of fraud. By Thursday, the president had simplified his message to calls for the regular process of counting ballots to stop entirely.

On Wednesday, Trump's campaign filed lawsuits in Pennsylvania, Michigan and Georgia, and said it would demand a "recount" in Wisconsin.

Justin Levitt, professor at Loyola Law School and a former Justice Department deputy assistant attorney general overseeing voting rights cases, said the suits were unserious efforts, focused on minor issues in part because it's still too early for any other type of legal action.

"If this is a legal war, he's arming up with water balloons," Levitt said, adding that election litigation only affects election outcomes when there's a razor-thin margin in a single state. "Don’t expect the litigation to stop, but don't expect it to work either.”

Still, he said, until states finish counting ballots, it is unclear whether lawsuits could have any affect on the outcome of a race.

"It gets interesting when the margin of victory is 537 votes," he said, a reference to the margin in Florida during the 2000 election between George W. Bush and Al Gore. “You remember hanging chads, but there were 13 different lawsuits after Election Day in Florida."

Biden's election lawyer, Bob Bauer, call the flurry of lawsuits "meritless" and "silliness."

Here's a breakdown of legal action, and the status of various lawsuits.

Pennsylvania: Suits over poll watchers, ballot deadlines and more

The Trump campaign began Thursday by declaring a win after a Philadelphia court said their poll watchers could stand closer to the action. The count was temporarily halted as officials rearranged part of the room where tabulation was taking place, resuming after what the city's bipartisan board of elected officials said was a "brief pause."

"Can't stress enough how a big a victory it is," Justin Clark, Trump deputy campaign manager and senior counsel, said on a call with reporters earlier Thursday morning. "We had been denied access to count rooms in Philadelphia. This ruling today by the appellate court in Pennsylvania, it guarantees we’re going to be able to watch the ballots being counted in a corrupt place that is known for its shenanigans on Election Day and after."

City officials have petitioned to appeal the ruling to the Pennsylvania Supreme Court.

There's no evidence of voter fraud in Philadelphia, and Clark is wrong to say that the poll watchers have been denied access: Poll watchers have always been in the room, albeit asked to stand a distance away from the ballot counting machines. There's also a livestream.

Later in the day, the Trump campaign and Republican National Committee filed a suit arguing that some 600 mail ballots in the state should not be counted.

The Trump campaign filed a number of legal motions Wednesday in Pennsylvania, asking that ballot counting stop “until there is meaningful transparency” to satisfy Republican concerns of fraud.

The campaign and the RNC also asked a state appeals court to rule that the secretary of state erred in saying voters have until Nov. 12 to provide missing proof of identity for mail ballots. Republicans say the deadline should have been Nov. 9. On Thursday, a Pennsylvania appeals court ordered special handling of ballots for which missing voter ID information is supplied between Nov. 9 and Nov. 12. Those ballots won't be counted until the court resolves the issue.

It's a tactical victory that will have no immediate effect on the vote count.

The Trump campaign told reporters on Thursday to expect more legal action to try and get a closer look at the ballot counting that happened before they were allowed to stand much closer to the ballot counting activities.

The Trump campaign also moved to intervene Wednesday in a suit filed by five Pennsylvania Republicans against Secretary of State Kathy Boockvar in state court over allowing voters with defective mail ballots to cast provisional ballots in person in an attempt to have their vote count.

The suit alleges that Commonwealth's election code does not allow for mail ballots to be cured and filing a provisional ballot in person effectively does that. National Democrats moved to intervene on behalf of the state.

Lawyers for the president are also asking to let him intervene in the existing Supreme Court case challenging the extension of mail ballot deadlines in Pennsylvania. The justices split in 4-4 ruling in that case last month, effectively upholding a state court ruling that ballots received three days after the election could be counted. The Supreme Court is unlikely to act on this request immediately.

It’s unclear how many ballots could be affected by that suit — the Post Office has till Friday to deliver any outstanding ballots.

The Commonwealth's governor, Tom Wolf, a Democrat, condemned the Trump campaign's legal moves on Wednesday.

"These attempts to subvert the democratic process are disgraceful," Wolf said in a statement.

Nevada: Suits over signature matching and more

The Trump campaign said that it is filing a lawsuit in federal court in Nevada on Thursday, asking the judge to stop counting ballots because of what it alleged are "thousands" of illegal ballots.

Richard Grenell, Trump's former acting director of national intelligence, claimed that the campaign was not being allowed to observe the process. He did not offer proof of "thousands" of fraudulent ballots.

"Ballots are not automatically legal votes until they are checked and we are not being allowed to check," Grenell said at a news conference.

Grenell's assertion is incorrect and misleading. Election officials, not campaigns, verify voters' ballots. And both Republican and Democratic poll watchers are observing ballot counting in Nevada.

The Nevada Supreme Court refused a last-ditch Trump campaign effort Monday night to halt mail ballot processing and the use of signature verification software in Clark County, allowing the county to continue processing ballots as planned on Election Day.

The state Supreme Court seems unlikely to agree with appellants, writing in a Tuesday night order that the "appellants have not demonstrated a sufficient likelihood of success to merit a stay or injunction." They also noted that the suit had failed in district court because it lacked "evidentiary support" and standing and that the appeal hadn't changed that.

The case has not been dismissed and expedited review was granted, with more briefs due on Monday.

Georgia: A lawsuit over ballots. Dismissed.

A state court judge in Georgia has dismissed a lawsuit filed Wednesday by the Trump campaign and the Georgia Republican Party, which claimed that late-arriving mail ballots were being mixed in with ballots that arrived on time. The lawsuit included a claim from an observer who thought he saw evidence of such mixing.

The judge on Thursday said there was no evidence that the ballots seen by the observer were actually received after the cutoff for mail ballots. “There is no evidence that the Chatham County Board of Elections or the Chatham County Board of Registrars has failed to comply with the law,” the judge said.

Michigan: A request to stop counting. Denied

The Trump campaign filed a suit in Michigan Court of Claims on Wednesday. Campaign manager Bill Stepien said they had asked to stop ballot counting until the campaign can have more “meaningful access" to observe ballot processing and counting. A state court denied the request, saying the campaign had not offered evidence that the law was being broken.

NBC News projected Wednesday that Biden had won Michigan, with 99 percent of the expected vote tallied.

"Michigan's elections have been conducted transparently, with access provided for both political parties and the public, and using a robust system of checks and balances to ensure that all ballots are counted fairly and accurately," Ryan Jarvi, press secretary for Attorney General Dana Nessel, a Democrat, said in a statement.

The Democratic National Committee intervened to defend the state in the suit.