US President Donald Trump's team launched a series of lawsuits in key battleground states that seemed less about sound legal reasoning and more about slowing Joe Biden from marching over the electoral vote threshold.
At times, the lawsuits have contested ballots in the double digits — hundreds if not thousands of votes away of potentially swing any state's result.
“Admitting defeat is not a plausible reaction so soon after the election, so they throw a lot of Hail Mary lawsuits at the wall and hope something sticks,” said longtime Republican elections lawyer and CNN contributor Ben Ginsberg. He said these types of suits aren't indicative of a campaign that's feeling optimistic — and instead, is scrambling.
“I think much of the litigation is a longshot and unlikely to succeed,” said Franita Tolson, a law professor at USC Gould School of Law and CNN contributor.
She pointed to a lawsuit in Georgia the Trump campaign announced Wednesday night over a poll worker mixing unprocessed and processed absentee ballots. That might have the potential to affect a few votes, she said.
“I suspect that a big goal of this litigation is, in the short term, to change the narrative” from a potential Biden win to a conversation about election mismanagement or even fraud, Tolson said.
Another law professor and CNN contributor, Rick Hasen, said the lawsuits appeared to be more public relations than serious litigation. “These lawsuits so far are not tackling any major problem that would seem to call overall vote totals into questions,” he said.
Justin Levitt, another elections expert and law professor, called some of the suits, like in Michigan, “laughable.”
“One says you didn't put people by absentee dropboxes, so stop the count. Huh?!”
Even a Republican-appointed federal judge in Pennsylvania cast doubt on the validity of a suit from Republicans on Wednesday when they challenged fewer than 100 ballots that absentee voters corrected in a county outside Philadelphia. At a hearing Wednesday morning, the judge, Timothy Savage, did not rule, yet he suggested the lawyer for Republican canvass observers was seeking to disenfranchise votes. He noted the lawsuit appeared to have other problems in its arguments.
Some legal challenges in Pennsylvania from the Trump campaign were quickly dismissed on Election Day, with Trump touting his appeals of those losses apparently as new cases Wednesday. For instance, a Philadelphia election day judge had shot down a Trump campaign case over ballot processing access, writing that “observers are directed only to observe and not to audit ballots” and deciding that the city's board of elections complied with the law. Another Election Day challenge from the Trump campaign to the ballot observation process in Bucks County, Pennsylvania, also near Philly, was dismissed by a judge, though Trump is now appealing, according to Pennsylvania court records.
Lawyers for the Trump campaign sued in Nevada on Tuesday, too, claiming that their observers were not given enough access to all aspects of the ballot counting process — from opening the ballots to the machine and manual signature checking and duplicating spoiled ballots. A Nevada judge denied the GOP challenge to the early voting process in the heavily Democratic county.
“If this last-minute suit were successful, it would require a major change in how [Nevada] processed absentee [ballots] to determine if the signature on the ballot matched the voter’s prior signature on file,” said Richard Pildes, a constitutional law professor at New York University and CNN election law analyst. “Courts are typically unwilling to let plaintiffs come in the door so late in the day and ask for major changes to a process that’s already well underway.”
However, one suit, the petition before the US Supreme Court on Pennsylvania's ballot deadline, may be a more serious litigation challenge. It challenges the validity of potentially several thousand votes cast in good faith by voters, but received by officials after the election through the mail.
For this case to make a difference, Pennsylvania would need to be the deciding state for the election, and the margin of difference between Trump and Biden would need to be a few tens of thousands of votes.
Nevada attorney general: We feel “impenetrable” to any potential Trump legal challenge
Nevada is ready to rebuff any legal challenges the Trump campaign brings against the state's election results, the state's Democratic attorney general Aaron Ford said late this evening.
“We feel quite invulnerable if you take a look at the track record we've already established against Mr. Trump,” said Ford when asked by CNN's Chris Cuomo how invulnerable to legal attack he felt.
“[Trump] sued us twice, maybe three times, already,” he said. “Each time my office has been able to work with our local district attorney … and defeat those lawsuits.”
Late last month, for example, the Trump campaign along with Nevada Republicans sued in state court to halt the count of some mail-in ballots over stringency of signature-matching computer software and how closely observers can watch votes being counted. A Nevada judge rejected that lawsuit on Monday, with less than 24 hours before Election Day.
“We actually have safeguards to prevent fraud, such as signature verification and unique barcodes, that are also part and parcel of the process here,” Ford told Cuomo. “We think it's pretty impenetrable when it comes to legal challenge against us.”
