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As the vote count continued on Wednesday in an excruciatingly tight presidential race that seemed to be moving inexorably against him, President Trump took to the courts in a desperate effort to challenge the results.
“They are working hard to make up 500,000 vote advantage in Pennsylvania disappear — ASAP,” Trump said Wednesday in one of several tweets that Twitter flagged for misleading or false information. “Likewise, Michigan and others!”
Eyeing key states that are critical to securing a victory, Trump has cast aspersions on the ballot-counting processes in Michigan, Pennsylvania and Wisconsin. With the results still pending early Wednesday, Trump declared that he would petition the U.S. Supreme Court to stop the counting of votes. Later Wednesday, Trump’s campaign announced it filed a complaint in the Michigan Court of Claims to halt counting until the campaign is provided access to observe the ballots being opened and counted, according to a statement from the campaign.
Trump’s campaign announced late Wednesday afternoon that it’s suing to stop counting in Pennsylvania until “Republicans can ensure all counting is done above board and by the law,” the campaign said in a statement.
Most recently, the campaign filed a lawsuit Wednesday evening in Chatham County, Ga., to require all counties to separate “late-arriving ballots” from all “legally cast ballots,” after alleging that a Republican poll observer witnessed “53 late absentee ballots illegally added to a stack of on-time absentee ballots” in the county, according to the campaign.
“President Trump and his team are fighting for the good of the nation to uphold the rule of law, and Georgia’s law is very clear: to legally count, mail ballots must be received by 7 p.m. on Election Day,” the campaign said in a statement.
In Arizona, however, where he was running behind Joe Biden, Trump has not tried to halt the count, and said he believed additional ballots would put him ahead.
The Trump campaign also filed a motion to intervene in Pennsylvania Republican Party v. Boockvar, a case in which the Pennsylvania GOP challenged a state Supreme Court order that allowed mailed ballots received up to three days after Election Day to be counted. The U.S. Supreme Court ruled against the GOP last month but was asked to reconsider its ruling.
The cases are among many civil lawsuits filed over the election process in the months leading up to the election, which have mostly been settled. Such litigation usually starts at the local level, where elections are handled, but may rise to the U.S. Supreme Court if a constitutional question is involved.
Whether any of these cases have any real impact on the election remains to be seen, but law experts who spoke to Yahoo News were skeptical of their validity.
“I just don’t really see a path to victory on these ‘hail Mary’ claims,” Wendy Weiser, vice president of the Democracy Program at the Brennan Center for Justice at NYU School of Law, told Yahoo News. “This is a distraction.”
Paul M. Smith, an elections expert at Georgetown University Law Center and the vice president for litigation and strategy at the Campaign Legal Center, told Yahoo News that a legitimate case has to have “something that would suggest that the election was stolen from you or mishandled in some way,” he said. “The recount is what you usually use to identify that.”
Smith said that the campaign could have arguments that certain ballots shouldn’t be allowed, which the Trump campaign is arguing in Pennsylvania.
“But I think that’s a lot of rhetoric,” Smith added, noting that the U.S. Supreme Court handed Republicans a win in October when it declined to extend the deadline for absentee ballots in Wisconsin. “I don't think they can just figure out a way to take the election back just by having lawyers run around [with] scorched-earth litigation tactics.”
While the campaign can file as many lawsuits as it wishes, and the complaints could have legal merit, law experts told Yahoo News that they can’t, at this point, imagine how any of these cases could become consequential to the presidential race.
For example, if the Trump campaign were to succeed in getting ballots invalidated in Pennsylvania, and if this were to somehow help Trump win Pennsylvania, that may not even matter if Biden wins other critical states.
“If Biden wins enough other electoral votes, then Pennsylvania's 20 electoral votes don't matter,” David Kaplan, author of “The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution,” told Yahoo News. “If the Trump campaign thinks they have a good legal issue in Nevada, Arizona, Wisconsin or Michigan, they can bring it on. It’s possible it could work its way [up] to the Supreme Court. But that’s at least days away, perhaps [weeks] away.”
A potential repeat of Bush v, Gore, the famous Supreme Court decision that essentially decided the 2000 presidential election, is an even more distant possibility.
“It’s pretty unlikely,” Smith said. “Because Bush v. Gore had these two two really unfortunate things. One of them was that Florida was the decisive state. Second, it was essentially tied. That’s a real ‘one in a thousand’ thing, to have a state the size of Florida come down to a couple hundred votes.”
Ahead of the election, Trump has sown seeds of doubt in the process of counting votes after Election Day. The act of filing a lawsuit doesn’t in itself suggest that something is awry.
“This is not a constitutional crisis,” Weiser said. “This is just a baseless strategy. And the president’s been pursuing a lot of baseless strategies to try to undermine confidence in the integrity of our election for some time now.”
Even if the campaign files lawsuits seeking recounts, which are fairly routine, it probably won’t net a ballot count beyond a few hundred votes, if that, Ken Kollman, a research professor at the University of Michigan’s Center for Political Studies, told Yahoo News.
“You’re not going to overturn more than 50,000 votes, 30,000 votes, or even 10,000 votes,” he said. “It's just very unlikely.”
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