“As the Trump campaign has come forward with its legal arguments, they haven’t really produced any facts or legal theory that’s stronger than when they started,” election lawyer and CNN analyst Rick Hasen said.
President Donald Trump’s campaign strategy increasingly appears to be to cast enough doubt over vote counts so it can find judges to block states from certifying the choice its voters made, according to elections experts, including longtime Republican lawyer-turned-CNN analyst Ben Ginsberg. The Electoral College doesn’t formally select the president until December 14, with a key deadline December 8.
If that worked, in theory, it could then open the path for state legislatures — especially the Republicans in power in Michigan and Pennsylvania — to argue they should make their own choice for their Electoral College slate, handing Trump a victory that goes against Biden’s win in more than one state. But it couldn’t come close to giving Trump the electoral win without lots of help.
“I suspect the Trump campaign’s pipe dream is to force all these issues that have never before been litigated to the Supreme Court,” Ginsberg said.
“To win, Mr. Trump must prove systemic fraud, with illegal votes in the tens of thousands. There is no evidence of that so far. Unless some emerges quickly, the president’s chances in court will decline precipitously when states start certifying results,” wrote Rove, who is long considered a mastermind of political maneuvering during the presidency of George W. Bush.
Lawyers for the Biden campaign have called the Trump campaign lawsuits theater, and nothing more.
The Keystone State has seen the most attempts by the Trump campaign to muddle Biden’s apparent win in the state in court, and now has its boldest case to attempt to block state leaders from certifying the vote results.
However, top Republicans in the Pennsylvania Legislature have said the state’s presidential electors will follow the outcome of the popular vote.
Biden leads by 50,000 votes in Pennsylvania and CNN has projected him to win the state.
The Trump campaign filed a federal court case on Monday laying out many grievances about the election in Pennsylvania with little evidence. The case alleges that voters have faced constitutional rights violations, because counties took different approaches to process absentee ballots and that observers at times were unable to fully see ballot processing — the same types of arguments that have faced skeptical judges in other courts.
The Trump campaign asked federal Judge Matthew Brann in the Middle District of Pennsylvania, to stop the certification of election results. Brann will hold arguments and a hearing for witnesses to testify on next Tuesday and Thursday.
Other live Trump campaign or Republican cases in the state deal with the handling of absentee ballots with defects or other special situations, such as missing privacy envelopes, lack of an address on the outside envelope or corrected with a provisional vote, or mailed ballots received after Election Day. Even if all of the cases — including a lingering challenge at the US Supreme Court over the late-arriving votes — were to be successful, the amount of ballots affected would be a few thousand. That wouldn’t be enough to surmount Biden’s lead over Trump.
Another lingering case in the state is an appeal by Democrats after the Trump campaign’s election observers in Philadelphia won the ability to stand slightly closer to ballot processors, which the Trump campaign has used to further its public relations effort to create doubt in the election process.
Two court cases from the Trump campaign — in Michigan’s state and federal courts — are seeking to slow down or prevent the state and Wayne County, which includes heavily Democratic Detroit, from certifying votes there. Officials in Michigan have said the election was run properly.
In a federal court case filed Wednesday, the Trump campaign is asking the court essentially to force a do-over of the absentee vote count in Michigan and to block the state from certifying its election results.
CNN has projected Biden as the winner of the state by almost 3% over Trump, with nearly a 150,000 vote lead.
A judge in Michigan’s Court of Claims already dismissed the state-level lawsuit within two days of its filing, calling the “evidence” the Trump campaign touted regarding the counting of absentee votes as hearsay.
On Wednesday in a state court hearing, two individual plaintiffs made a similar bid as the Trump campaign and asked for an audit and to prevent the certification of the result.
Attorney David Fink, representing Detroit, explained to the judge at that hearing that blocking the finalization of Michigan’s votes would either knock the state out of the Electoral College, kicking the selection of the president to the US House of Representatives, or to allow the Republican-held state legislature to try to seat its own slate of electors.
Judge Timothy Kenny said he would release his opinion on Friday.
The Trump campaign filed a lawsuit on Saturday seeking to block the canvass or certification of all ballots cast in person on Election Day in Maricopa County, the most populous county in the battleground state and includes Phoenix, until they could be reviewed.
Biden is leading Trump in the state by more than 12,000 votes. CNN has not projected a winner in the state. But the Trump campaign alleges that a review of almost 166,000 ballots cast in person on Election Day “would yield up to thousands of additional votes for President Trump and other Republican candidates in the November 3, 2020 general election.”
In the lawsuit, which revived disproven claims that Sharpie pens were disenfranchising voters, the campaign argued that some voters’ ballots were rejected by tabulation machines due to defects, such as stray marks or ink blots from Sharpie pens. The campaign is trying to make their case using statements to from two voters who suspected but did not have evidence that their ballot wasn’t counted.
A Maricopa County elections official has told the court only 180 cast on Election Day were even reviewable, and that there was no systemic problem with the election.
The Trump campaign has tried to delay a court hearing and a Trump attorney sought to seal the identities of individuals he wanted to call to testify at a hearing scheduled for Thursday.
Lawyers for Maricopa County objected.
“The public has a right to know how flimsy Plaintiffs’ evidence actually is,” they wrote.
The Trump campaign previously in took part in an Arizona lawsuit brought by a dozen voters who alleged that Sharpies may have caused ballot problems. They ultimately dropped that lawsuit.
Even with a recount, a margin of votes above even 1,000 is a large and apparently insurmountable gap for Trump to overcome. In recounts since 2000, the average change in the number of votes has been a few hundred, according to research from the nonpartisan group FairVote.
“Everything is a step along the way of the ultimate goal of the president being reelected,” campaign legal counsel Stefan Passantino said Wednesday regarding the recount.
CNN’s Jessica Schneider, Annie Grayer, Michael Warren and Pamela Brown contributed to this report.