You wouldn’t know it from reading President Donald Trump’s Twitter feed, but judges across the nation have repeatedly rejected lawsuits filed on his behalf in an unsuccessful effort to overturn Joe Biden’s victory in the presidential race.
At latest count, at least several dozen cases have been rejected in court or withdrawn. At one point, Trump lost cases in six states in a single day, NPR tallied. Marc Elias, the Democratic attorney who has been involved in many cases, tweeted that as of the afternoon of Dec. 9, Democrats have notched 53 victories.
Some longshot cases are still pending, including a challenge by Texas Attorney General Ken Paxton that asks the U.S. Supreme Court to invalidate the electoral college votes for Biden from Georgia, Michigan, Wisconsin, and Pennsylvania.
These lawsuits continue even as the Dec. 8 “safe harbor” deadline passed. That’s the date that’s intended to be the cutoff for states to finalize their recounts and audits. Trump has just a few days to go before the electors meet to cast their ballots on Dec. 14. Trump’s campaign said in a statement regarding the safe harbor deadline: “The only fixed day in the U.S. Constitution is the inauguration of the president on Jan. 20 at noon.”
But Rick Hasen, an election law professor at the University of California-Irvine, said the safe harbor date is “another nail in the coffin.” At this point, “Trump does not have a path to use the courts to overturn the election,” Hasen told PolitiFact.
“It is very hard to overturn an election in court, and for good reason,” Hasen said. “You would need to have either an extremely close election, where there could be a fight over the inclusion of particular problematic ballots, or show some kind of massive irregularity in how the election was run. This election was not particularly close between Biden and Trump in any state — 10,000 ballots is far too many to make a difference in a recount. So the lawsuits either made unsubstantiated claims of fraud, alleged other irregularities that could not be backed up with evidence, or advanced wild legal theories that have never been used to overturn an election before. Unsurprisingly, both strategies failed.”
Here’s a closer look at how the post-election litigation has played out.
How have pro-Trump lawsuits been disposed of?
The lawsuits — some filed by Trump’s lawyers and some by separate pro-Trump entities — have fallen short for a couple of different reasons, legal experts said. In fact, “most of the suits suffered from a combination of these problems,” said Barry Richard, a recount attorney in Florida.
Lawsuits that were filed too late. One suit in Pennsylvania targeted a 2019 law that allowed no-excuse absentee ballots in the state. The court, in its ruling dismissing the suit, said the plaintiffs should have been challenged well before the election, rather than after millions of such votes had been cast.
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Cases that were dismissed for other procedural reasons. In a Michigan Supreme Court case, petitioners were dissatisfied with the decision of the Board of State Canvassers to declare a winner, but the state supreme court ruled that it had no jurisdiction to review that decision. “It is irresponsible to continue holding out the possibility of a judicial solution to a political dispute that needs to be resolved with finality,” wrote Justice Elizabeth T. Clement.
And in Georgia, Judge Timothy Batten, who was appointed by President George W. Bush, ruled that a lawsuit filed by Sidney Powell, a former Trump lawyer, belonged in state court and was too far-reaching.
“Federal courts are of limited jurisdiction; they are not the legal equivalent to medical hospitals which have emergency rooms that are open 24/7 to all comers,” he said. “In their complaint, the plaintiffs essentially asked the court for perhaps the most extraordinary relief ever sought in any federal court in connection with an election.”
Cases where courts said that alleged violations, even if true, shouldn’t be remedied by canceling votes. This issue came into play with some pro-Trump lawsuits that challenged how much access observers had to the ballot-counting process. Procedural issues, courts decided, “don’t automatically lead to the conclusion that ballots were cast illegally,” said Richard Pildes, a New York University law professor.
In Wisconsin, Supreme Court Justice Brian Hagedorn wrote that a request from a voters’ group to invalidate the entire election would be “unprecedented in American history.”
“This petition falls far short of the kind of compelling evidence and legal support we would undoubtedly need to countenance the court-ordered disenfranchisement of every Wisconsin voter,” Hagedorn wrote.
And Judge Stephanos Bibas, a Trump appointee to the U.S. Court of Appeals for the Third Circuit, said in dismissing one Pennsylvania challenge: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
Cases where courts rejected lawsuits on the merits. Courts in several cases rejected the idea that what was being alleged amounted to a violation of state or federal law.
In his dismissal of a case seeking to invalidate Pennsylvania’s election results, U.S. District Judge Matthew Brann concluded that lawyers presented “strained legal arguments without merit and speculative accusations un-pled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.”
Sometimes courts rejected cases where the pro-Trump briefs were riddled with errors. One was based on an affidavit that attempted to cite results from precincts in Michigan, but actually cited ones in Minnesota. (The statistics about Minnesota were wrong too.) One lawsuit filed by Powell claimed wrongdoing in Edison County, Mich. — a place that doesn’t exist.
“Early on, people were saying that even if these claims were valid, there weren’t enough ballots to overturn the election,” Pildes said.
But now that several dozen cases now dismissed, it’s possible to draw an even more sweeping conclusion, he said. “We can say that these claims were just overwhelmingly rejected on substantive grounds.”
No court has yet credited the evidence presented, said Rebecca Green, an election law professor at the College of William and Mary. “Such cases have involved evidence that has been remarkably flimsy,” she said.
What litigation remains
Experts told us that the remaining lawsuits cannot plausibly overturn the election.
One case could be heard by the U.S. Supreme Court after the inauguration, Pildes said. It’s a case from Pennsylvania that challenges the state Supreme Court’s decision to extend by three days the period when absentee ballots could be received. Before the election, the U.S. Supreme Court divided on the case, 4-4, but the court could choose to revisit the case next year.
However, the number of ballots at issue in this case would be too small to swing the election results.
Then there’s the case filed by Paxton, the Texas Republican Attorney General. The lawsuit alleged that Georgia, Michigan, Pennsylvania and Wisconsin exploited the pandemic to make election procedure changes, which Paxton said in a press release resulted in “skewing the results of the 2020 general election.”
Paxton’s lawsuit repeats allegations that have already been rejected, reviving false and misleading conspiracies such as “mysterious late night dumps of thousands of ballots,” “suitcases full of ballots” kept from observers’ view, and questioning how Biden could win in certain jurisdictions where Trump was ahead early on. (We have debunked such claims.)
Election-law experts variously described Paxton’s lawsuit as “outlandish,” a “farce,” and “ridiculous.”
“One state is complaining about the election rules in a different state,” said Ned Foley, an Ohio State University law professor who specializes in elections. “Imagine if Massachusetts sued Texas about how it ran its elections. Texas would never tolerate that, and shouldn’t.”
The U.S. Constitution delegates to state legislatures the power to run their elections and defer to state level post-election dispute resolution processes, Green said. If those state-level disputes are unresolved, the Constitution and federal law delegate to Congress the job of resolving those disputes.
“In no part of that structure do states have a role in policing elections run by other states; nothing in our system gives voters in one state the right to force other states to run elections one way or another,” Green said. “And that is just the tip of the iceberg that doesn’t delve into standing, original jurisdiction and other reasons why the suit makes no sense.”
Ultimately, “there are no lawsuits left that have any chance of success,” said University of Pennsylvania law professor Kermit Roosevelt. “Looking back, none of them ever had any chance.”
Praise for the judiciary
Legal experts credited the judiciary for acting independently.
“The courts have been standing for the rule of law and deciding cases based on legal principles, evidence, and actual, provable facts, not speculation,” Foley said. “They are doing their job, and that’s encouraging.”
The United States has had an independent judiciary for so long that “we’re used to it,” Pildes said. “But it’s still a great institutional achievement.”
The fact that the cases have been tossed swiftly, including by Republican judges, shows that the cases are weak, said Harvard law professor Nicholas Stephanopoulos.
“Given the rulings of the federal courts in other election law cases, I think they would be receptive to claims of fraud that could actually be substantiated,” he said. But that wasn’t the case with the pro-Trump lawsuits, he added.
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