WASHINGTON — In the 48 hours since polls closed on Election Day, President Donald Trump’s campaign has made good on a pledge to flood the courts with challenges, but so far it has either lost cases outright or gotten orders with little to no effect on vote tallies.
What these cases have done is given Trump and his supporters a vehicle to push false claims that the lawful counting of ballots after Election Day is illegal or evidence of fraud. On Thursday night, the president lied repeatedly, accusing Democrats of trying to “rig” the election, referring to “mystery ballots” and “secret count rooms” — claims that judges had rejected earlier in the day after hearing the campaign’s evidence.
At a hearing Thursday morning, Michigan Court of Claims Judge Cynthia Stephens turned a skeptical eye to a witness affidavit the campaign had presented as evidence of malfeasance at the polls.
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The witness — a Republican poll watcher in Wayne County — reported that she’d learned an election worker was being told to backdate late-arriving absentee ballots. The witness claimed another poll observer, who wasn’t named, heard from the election worker, also unnamed, about the issue. The witness reported that she then spoke with the poll worker, who gave her a handwritten note that read, “entered receive date as 11/2/20 on 11/4/20.”
Stephens wasn’t persuaded. At best, she told Trump campaign lawyer Mark “Thor” Hearne II, what had been presented was secondhand hearsay, which is rarely accepted in court. Hearne insisted that the witness was relaying firsthand experience, but Stephens said the witness’s account was too many steps removed from any actual misconduct the campaign was trying to prove.
“‘I heard somebody else say something’ — how is that not hearsay? Come on now,” Stephens said.
The campaign lost the case. It had presented the poll watcher’s account as part of a lawsuit that didn’t even challenge ballots counts. Instead, it claimed Michigan’s secretary of state wasn’t giving party election inspectors and citizen “challengers” access to observe counting and ballot drop boxes where voters could submit absentee ballots. Stephens found the campaign not only failed to prove that, but also that the case was on shaky ground to begin with; it had sued the secretary of state — but if an observer was being denied access, the local election officials at that polling site or ballot drop box were the ones responsible, the judge said.
A judge in Chatham County, Georgia, which includes Savannah, dismissed a Trump campaign lawsuit on Thursday that attempted to sow doubt about whether election officials were properly setting aside absentee ballots that arrived after the state’s Election Day deadline. The campaign presented two witnesses who said they were worried about a break in the chain of custody for 53 ballots. Under questioning by the county’s lawyer, they admitted they didn’t have evidence that those ballots had arrived late, however. A county official testified that the ballots had, in fact, arrived on time and were handled separately because they needed to be specially checked and entered into a computer system.
Like Stephens in Michigan, Chatham County Judge James Bass Jr. immediately announced from the bench at the end of the hearing that he was dismissing the case. In a written order released by the court later in the day, Bass wrote that there was no evidence that ballots that arrived after Election Day were being counted, and no evidence that county officials had “failed to comply with the law.”
Throughout the day on Thursday, the Trump campaign teased an imminent lawsuit in Nevada challenging votes there — but as of Thursday night, nothing had actually been filed in court.
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The Trump campaign claimed to have won big victories in two cases in Pennsylvania on Thursday, but neither involved the kind of major, outcome-determining court orders that the campaign presented them as in press releases.
On Election Day, a Philadelphia judge had rejected the campaign’s argument that their poll watchers were entitled to stand physically closer to the ballot-counting process than they were being allowed. On Thursday, the Commonwealth Court of Pennsylvania reversed that decision and ruled that observers could stand within 6 feet as long as they observed other pandemic-related safety measures. Former Florida attorney general Pam Bondi, a Trump campaign adviser, brandished a copy of the order at a press conference in Philadelphia (and was drowned out by protesters blasting Beyoncé) — but in an opinion released later in the day, the court noted that even with closer access, observers still didn’t have any right to challenge the validity of the ballots.
In another case before the Commonwealth Court of Pennsylvania, the Trump campaign alleged that Secretary of State Kathleen Boockvar had unlawfully extended the deadline for absentee voters to comply with a voter ID requirement, from Nov. 9 to Nov. 12. The campaign claimed victory when the court entered an order directing counties to separate ballots in which the voter’s identification is verified during that contested three-day period while the case is pending — but it was unclear how many ballots that would affect, and there was still a chance the court could decide they were valid.
A Trump campaign legal adviser appearing on Fox News on Thursday echoed the president’s claims that they’d take the election to the US Supreme Court to decide — "We’re waiting for the United States Supreme Court … to step in and do something," Harmeet Dhillon said. But the lawsuits filed by the campaign so far don’t present the kind of election-defining legal questions the court would be likely to take up; plus, it wasn’t clear if the one case already pending before the court would be relevant to who wins.
Pennsylvania Republicans are challenging a state Supreme Court order that extended the deadline for election officials to accept absentee ballots, from Election Day to Nov. 6. Trump’s campaign filed a request this week to join the case at the US Supreme Court to back the state GOP’s position. But that case would only become another Bush v. Gore — the 2000 decision that effectively handed the win to George W. Bush by halting a recount in Florida — if the election comes down to Pennsylvania’s 20 electoral votes, and if the number of ballots that arrived between Nov. 3 and Nov. 6 are large enough to affect the final tally.
Speaking to reporters on Thursday, Boockvar didn’t specify how many absentee ballots had arrived since Nov. 3, but she did say it was a “tiny fraction” of the ballots that arrived after the primary election in the spring; the Philadelphia Inquirer reported tens of thousands had arrived in the week after that election.