WASHINGTON — President Donald Trump has yet to address the American public after news networks called the 2020 election for his opponent, President-elect Joe Biden. But Trump and his allies have stayed plenty busy filing a wave of lawsuits in battleground states attempting to challenge certain votes and prove widespread fraud in the presidential election.
To be clear, there is no evidence of widespread fraud in the 2020 elections. It’s possible there will be isolated incidents of illegal voting or miscounted ballots, as there are in any U.S. election, but both Democratic and Republican secretaries of state have told news organizations there is no merit to Trump’s claims of rampant fraud that denied him a second term. That’s because voter fraud is and continues to be extremely rare in American elections. Justin Levitt, a former Justice Department attorney and Loyola Law School professor, studied more than 1 billion ballots cast from 2000 to 2014 and found just 31 credible allegations of voter fraud.
Still, Trump and his Republican allies press on with their legal campaign to challenge votes in states such as Michigan, Pennsylvania, Wisconsin, and Nevada. Rolling Stone has reviewed those lawsuits and interviewed election law experts about them. Here are four reasons why the Republican Party’s legal blitz won’t have any effect on the election’s outcome — but could still do grave damage to the public’s faith in free and fair elections.
The Evidence Is Extremely Weak
In state after state, judges have dismissed claims by Trump’s campaign, Republican parties, and local Republican activists as having no merit. “You can’t go to court just because you don’t like the vote totals,” Ned Foley, an Ohio State election law professor, said on MSNBC last weekend. “You have to have a legal claim, and you have to have evidence to back it up. And that’s just not there.”
In one suit filed in Michigan, a judge rejected an effort by the Trump campaign to stop the count of absentee ballots, writing in her decision that supposed evidence put forward by lawyers for Trump’s campaign was inadmissible “hearsay” and “inadmissible hearsay within hearsay.”
In another Michigan suit, filed by the Election Integrity Fund and alleging rampant ballot falsification and duplication in Detroit by agents of the Democratic Party, a judge took a similarly dim view of the allegations and quickly rejected the suit. While a lawyer for the city of Detroit had provided evidence that inspectors from both political parties always had access to the ballot-counting process, the judge wrote, the plaintiffs “do not offer any affidavits or specific eyewitness evidence to substantiate their assertions,” calling the allegations “mere speculation.”
Michigan Attorney General Dana Nessel told reporters on Wednesday that her office had “debunked every claim” of election fraud that has come into her office. She said the suits brought by the president’s campaign and his allies are “ridiculous” and “frivolous.” “If I ever walked into court with claims this baseless and this frivolous, I would be sanctioned and I would be looking at a loss of licensure,” she said.
A few days after election day, a Georgia judge tossed out a lawsuit brought by the Trump campaign and the state Republican Party that had argued valid but late-arriving mail-in ballots in Chatham County — home to Savannah — had been improperly included with mail-in ballots that had arrived on time. As evidence, the campaign put forward just the eyewitness account of one poll watcher who made fuzzy claims about a stack of 53 supposedly late ballots. County officials said they’d followed the law, and the judge swiftly rejected the suit, saying here was “no evidence” to support it.
And in Arizona, two voters sued election officials in Maricopa County, which includes the cities of Phoenix and Glendale, alleging they were disenfranchised because they were given Sharpie pens to fill out ballots, which caused the ink to bleed through the ballot and cause their votes to be rejected. This claim sparked a short-lived online conspiracy theory named #Sharpiegate that claimed election officials were foisting Sharpie pens onto certain voters to sabotage their votes. In this case, the voters who brought the suit voluntarily dismissed it days later, while the Trump administration itself debunked #Sharpiegate as untrue and a disinformation campaign. A follow-up suit filed in Arizona making similar claims was rejected by Secretary of State Katie Hobbs, a Democrat, as “baseless” and “grasping at straws.”
These Cases Wouldn’t Change the Election Outcome
The Trump campaign and its allies have won a few favorable decisions in court.
A Pennsylvania judge last week ruled that poll watchers could stand closer to election workers who were counting ballots. While the Trump campaign called the ruling “massive,” it had no bearing on any actual votes, and the Associated Press has since projected that Biden will win Pennsylvania.
The Trump campaign and state Republicans also got decisions from a state court and the Supreme Court that any mail-in ballots postmarked by, but received after, election day in Pennsylvania must be segregated from the rest of the ballots for counting purposes. Those ballots must be kept aside, the courts ruled, in the event that Pennsylvania’s decision to extend the deadline for receiving mail-in ballots is found unconstitutional.
But these small legal victories will have little to no tangible effect on the outcome. Going into the election, local officials in Pennsylvania had already been instructed to set aside late-arriving but properly postmarked ballots. And more importantly, the number of set-aside ballots in Pennsylvania is reportedly 10,000. Those ballots, like the rest of the state’s mail-in ballots, likely skew in favor of Biden. But even if every one of those 10,000 ballots went for Trump, it would not come close to changing the outcome in Pennsylvania, where Biden leads by 53,000 votes.
Indeed, most of the lawsuits filed by Trump and his allies would bear on only a small number ballots spread across multiple states. Remember: This isn’t Florida 2000, when the presidential contest came down to a few hundred votes in a single state. Biden is on pace to win as many as 306 electoral votes, and his cumulative lead across the decisive states is several hundred thousand votes and growing. The most recent lawsuit filed by Republican officials in Arizona concerns less than 200 votes. A Republican petition brought against the Montgomery County, Pennsylvania, election board challenges the validity of less than 600 ballots. (And in that case, the lawyer for the side challenging the votes said during oral arguments that he couldn’t name any evidence of fraud.)
“I can tell you objectively that this strategy does not appear like it was designed to affect the legal outcome,” says Rick Hasen, an election law expert and professor at the University of California-Irvine’s law school.
Even Karl Rove, the Republican consultant and former George W. Bush adviser, writes “the president’s efforts are unlikely to move a single state from Mr. Biden’s column, and certainly they’re not enough to change the final outcome.”
The Most Sweeping Arguments Are Longer than Long Shots
Trump and his Republican allies have mounted what election law expert Rick Hasen calls legal Hail Marys in a few states. The clearest example of this is the Trump campaign’s lawsuit against Pennsylvania Secretary of State Kathy Boockvar filed on November 9th.
At the core of this lawsuit is a legally audacious argument: Pennsylvania’s decision to give voters the ability to either vote by mail or vote in person was itself unconstitutional. “This two-track election system not only violates Plaintiffs’ rights guaranteed by the United States Constitution, but also violates the structure of the Constitution that elections in the States must be carried out as directed by their respective legislatures,” the complaint reads.
Myrna Pérez, director of the Brennan Center’s Voting Rights and Elections Program, calls this argument “specious and ridiculous.” Every state in the country has some form of a two-track voting system, she says. If this argument stood, she continues, “that means that every election this country has contracted basically was unconstitutional,” Pérez tells Rolling Stone. “It’s implausible. This is not a serious lawsuit.”
They’re Only Challenging Votes in the Places Trump Lost
Given the Trump campaign’s sweeping arguments about why late-arriving ballots shouldn’t be counted, or that any state offering mail-in voting and in-person voting was acting unconstitutionally, it’s worth pointing out where Trump and his allies haven’t filed any post-election lawsuits: Florida, North Carolina, Ohio, Iowa, Montana.
These are all battleground states that saw a surge in mail-in voting. Florida alone had 4.7 million mail-in ballots returned, according to the U.S Elections Project. Yet the Trump campaign and its allies have not challenged late-arriving ballots or the entire election system itself in a single county or state where the president is the projected winner even though down-ballot Republicans in those states lost races or are on track to lose as the dragged-out vote count rolls on.
Take North Carolina and Pennsylvania. Before the election, Republicans sought to nullify decisions that allowed both states to extend the window of time after the election to accept mail-in ballots. Now, a week after the election, Republicans continue to challenge the validity of those late-arriving ballots In Pennsylvania. But with Trump and Republican Senator Thom Tillis projected to win in North Carolina, the GOP appears to have dropped its legal effort to block the counting of those same kinds of properly postmarked ballots that arrive after election day.
So what’s really going on here? Why bother filing so many lawsuits if they have a near-zero chance of changing the election result and, in some cases, can’t pass the straight-face test?
The first reason is obvious: Money.
Trump’s campaign and Republican officials are furiously fundraising off of their ongoing legal blitz. The Trump campaign sent its supporters 17 separate emails on Tuesday — the first at 12:14 a.m. and the last at 11:01 p.m. — with subject lines such as “STOP THE STEAL” and “Mail-in Ballot HOAX!” As the Wall Street Journal reported, the fine print in those emails says the funds raised by those emails can go toward not just legal defense efforts but retiring debt incurred by the Trump campaign.
Another reason is to assuage Trump’s ego. The Washington Post quoted an anonymous “senior Republican official” who described these lawsuits as little more than an attempt to placate Trump: “What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change…He’s tweeting about filing some lawsuits, those lawsuits will fail, then he’ll tweet some more about how the election was stolen, and then he’ll leave.”
Still another reason is that Trump and his team might hope these suits spur state legislators into doing something dangerously anti-democratic, such as trying to stop the official certification of the election results or disrupt the Electoral College. In addition to the lawsuits, Republican state legislators in Michigan, Wisconsin, and Pennsylvania have called for investigations or issued subpoenas to find unproven voter fraud in an election cycle they performed extremely well in apart from Trump’s defeat. This creates the possibility, however far-fetched, that legislators could use vague claims of irregularities as a pretext to thwart the certification process or even send a slate of so-called faithless electors to make Trump the winner in the Electoral College despite Biden’s clear and decisive victory.
Again, these are far-fetched and unlikely scenarios but not impossibilities. “For years some people have been saying: There’s no way they’ll do this or that. There’s no way Donald Trump will tweet that he won an election he obviously lost,” says Jessica Post, who runs the Democratic Legislative Campaign Committee. “President-elect Biden and Vice President-elect Harris won the election. But Republicans are obviously humoring Donald Trump, and I think there’s a question about how far they’ll go with it.”
Even without that constitutional-crisis scenario, the obvious downside of Trump’s legal blitz is it seeks to delegitimize not just the next president in the eyes of a significant portion of the country. A recent Economist/YouGov survey found that 8 in 10 Trump voters said Biden’s election victory was not legitimate despite all the evidence showing that it was. Myrna Pérez of the Brennan Center says she views the Republican lawsuits as more than an attack on Biden; she calls them an attempt to “undermine the use of elections as a peaceful resolution of political differences.”
At this point, both liberal and conservative public figures are sounding the alarm about the damage done to U.S. democracy by Trump’s post-election lies and frivolous legal assault. Speaking to reporters on Wednesday, Grant Woods, a former Republican Arizona attorney general and chief of staff to Sen. John McCain, said the GOP’s lawsuits had, at least for now, succeeded at doing what America’s foreign adversaries had tried and failed to do for decades. “They’ve caused a substantial portion of Americans to lose faith in our institutions,” Woods said, “and one of those is our electoral system.”