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Trump And Republicans Had A Very Bad 72 Hours In Court Trying To Challenge The Election Results

Trump’s legal strategy so far has failed to undermine, or even delay, President-elect Joe Biden’s win.

Posted on November 16, 2020, at 6:20 p.m. ET

Carlos Barria / Reuters

WASHINGTON — Over the span of just 72 hours, President Donald Trump and his supporters have faced a barrage of court losses and setbacks in Pennsylvania, underscoring their inability to make a dent in the election results despite the flood of cases they’ve filed since Nov. 3.

The campaign hasn’t focused its legal efforts on one state or one issue, instead pursuing challenges big and small across the country. The bulk of cases that are still active at this point are in Pennsylvania. Despite the campaign’s messaging that the sheer quantity of legal challenges speaks to a deeper problem with the legitimacy of the election, judges haven’t handed down decisions to validate that rhetoric.

Since Friday, state and federal judges in Pennsylvania have rejected Trump’s challenges to small batches of ballots ranging from the hundreds to the low thousands; Biden leads Pennsylvania by more than 68,000 votes, according to Decision Desk HQ. Judges have also undermined some of the legal theories that underpin the campaign’s effort to stop Pennsylvania from officially declaring that President-elect Joe Biden won the state.

The morning after Election Day, Trump declared that he would take the election to the Supreme Court, invoking the image of another Bush v. Gore, when the justices halted a ballot recount in Florida that handed the 2000 election to former president George W. Bush. Two weeks later, the legal landscape does not look at all like 2000. Trump would have to find legal paths to flip multiple states that Biden won, and the only case pending before the Supreme Court involves the fate of the 10,000 absentee ballots that arrived in Pennsylvania after Election Day.

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The campaign on Sunday filed a slimmed-down version of a lawsuit against Pennsylvania election officials after acknowledging that a recent appeals court decision meant it couldn’t win some of its original arguments. Additionally, True the Vote, a conservative advocacy group that had filed lawsuits challenging Trump’s losses in multiple states where Biden won, including Pennsylvania, withdrew those cases on Monday.

The few cases where the campaign has scored a win have either done nothing to change the number of votes counted — a ruling that poll watchers in Philadelphia could stand within 6 feet of the counting process, for instance — or affected too few votes to change the outcome.

In Pennsylvania, a court agreed with Trump’s campaign that Secretary of State Kathleen Boockvar was wrong to extend a deadline for absentee voters whose ballots arrived after Election Day to confirm their identity. Boockvar’s office declined to comment on how many ballots the order affected. But approximately 10,000 ballots in total arrived during the period in question, according to Boockvar; even if all of those votes were for Biden, and all of those voters also happened to fail to verify their identity by the earlier deadline, it still wouldn’t be enough to flip Pennsylvania for Trump.

Here’s a rundown of what happened in court in Pennsylvania over the past 72 hours. (Times reflect when orders and briefs were docketed, according to online court records.)

Friday, Nov. 13

11:25 p.m.

Two weeks before Election Day, a group of Pennsylvania Republican voters and a congressional candidate filed a lawsuit in federal court challenging the constitutionality of a Pennsylvania Supreme Court decision that extended the state’s deadline for absentee ballots. They lost that case and appealed to the US Court of Appeals for the 3rd Circuit.

The unanimous 55-page opinion that the court released on Friday didn’t just hand the Republican challengers in the case another loss — it set precedent for the rest of the circuit, which meant it would also affect a Trump campaign lawsuit in the US District Court for the Middle District of Pennsylvania. The court found that private parties didn’t have standing to bring a claim in federal court arguing that a particular election practice violated the elections clause of the US Constitution, which gives state legislatures the power to run elections. The Pennsylvania General Assembly could go to court to make that argument, the 3rd Circuit ruled, but not individual voters or candidates.

That was a problem for Trump because his case in Pennsylvania included arguments under the elections clause, a point that lawyers for Boockvar made later in the day. Shortly after 10:30 p.m. on Friday, Linda Kerns, a lawyer for the Trump campaign, filed a response that foreshadowed the slimmed-down lawsuit it would end up filing on Sunday. She wrote that although it disagreed with the 3rd Circuit, it conceded the decision would knock out those arguments in its complaint.

4:06 p.m.

One of the Trump campaign’s smaller-scale cases involved a set of 592 mail-in and absentee ballots in Montgomery County, Pennsylvania, a suburban area north of Philadelphia. The case didn’t include any of Trump’s unfounded allegations of election fraud — it was about ballots where the voter didn’t handwrite their address on a part of the envelope where they signed a declaration verifying that they were eligible to vote.

The campaign argued that those ballots were invalid because the voter violated a part of state election law that requires them to “fill out” the declaration. The county argued the law didn’t clearly require an address to be compliant, and Judge Richard Haaz agreed. The vast majority of the ballots at issue had the voter’s address printed elsewhere on the envelope, and Haaz wrote that the lack of a handwritten address with the declaration would not disqualify an otherwise eligible voter from casting a ballot — especially, the judge wrote, “where no claim of fraud or improper influence is alleged.”

A Trump win wouldn’t have changed the outcome in Montgomery County — according to unofficial election results from the county, Biden won there by more than 133,000 votes.

4:09 p.m.

At around the same time that the judge in Montgomery County was ruling against Trump, a judge in Philadelphia ruled against his campaign in five cases it had brought challenging just over 8,300 absentee ballots. Like the fight over the 592 ballots in Montgomery County, the Philadelphia cases also didn’t claim fraud or shady poll practices — they were again about ballots missing certain pieces of information on the envelope, and what exactly state law required when it directed absentee voters to “fill out” the declaration.

Judge James Crumlish III wrote that the term was “ambiguous.” All of the voters had signed their declarations, and the judge found that none of the other missing pieces of information — such as the date, the voter’s address, or their handwritten printed name — were enough to disqualify the ballots altogether. That information was not “necessary to prevent fraud,” the judge concluded.

The Trump campaign filed notices on Saturday that it would appeal those orders. But like in Montgomery County, a win for the campaign, even in all five cases, wouldn’t change the outcome in Philadelphia — where Biden won by more than 450,000 votes — or in the state as a whole.

Sunday, Nov. 15

11:39 a.m.

As expected after the 3rd Circuit’s opinion on Friday limiting the types of claims that voters and campaigns could file, the Trump campaign filed a new version of its lawsuit in federal court. It submitted a “redlined” version that showed exactly what it had cut and added from the original, and the changes were dramatic — instead of seven counts alleging constitutional violations, there were now just two.

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The original set of counts were focused on allegations that poll watchers were denied access to see the counting process. The latest version still included the campaign’s argument that its representatives were denied access during the counting process, but the specific constitutional counts tied to those allegations were gone. In those counts, the campaign had argued that ballots processed without that level of access were illegal and that broadly undermined voting rights in Pennsylvania.

The two remaining counts accused the state of constitutional violations by allowing a system where some counties gave absentee voters a chance to “cure” defective ballots — to fix a missing signature, for instance — and others did not. The campaign left in an allegation that 682,469 absentee ballots in Philadelphia and Allegheny County were counted without proper observation — it didn’t explain in the lawsuit how it had arrived at that figure — but the two counts that were left focused on the “cure” issue, not observer access.

Trump’s campaign released a statement on Sunday insisting that the fate of the 682,469 ballots tied to the observation claims were “still very much part of the suit,” but the campaign’s lawyers cut a paragraph from the original version that specifically asked the judge to stop those votes from being counted as an alternative to their more sweeping request that the judge stop the state from certifying the results of the election altogether.

The judge is scheduled to hear arguments on Tuesday on the Pennsylvania secretary of state’s motion to dismiss the case, which is backed by the Democratic National Committee, county election boards, and civil rights groups.

Monday, Nov. 16

10:30 a.m.

A group of Pennsylvania voters filed notice in federal court that they were dropping a lawsuit they had filed a week earlier pushing general claims of fraud and other illegal voting practices across the state. As evidence, they relied on the allegations the Trump campaign had raised in its federal court case and claimed they would have more evidence that was “shortly forthcoming.” The lawsuit didn’t specify that the voters who sued were Republican, and the Trump campaign wasn’t a party, but the plaintiffs were represented by James Bopp Jr., general counsel of the conservative advocacy group True the Vote.

The dismissal notice didn’t include an explanation, which is common when parties dismiss their own cases, especially so early on. But on Friday, the secretary of state’s office filed a notice alerting the judge about the 3rd Circuit’s decision in the absentee ballot case and argued that ruling backed up the state’s argument that the plaintiffs lacked standing based on their broad argument that any illegal voting practices diluted their votes.

Bopp on Monday also withdrew cases his group had filed in the past week on behalf of voters in Georgia, Michigan, and Wisconsin. He did not return a request for comment.

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