Explainer: Why Trump's lawsuits are unlikely to change the outcome of the election

[November 13, 2020]  By Jan Wolfe and Tom Hals

WASHINGTON (Reuters) - U.S. President Donald Trump's litigation campaign to discredit President-elect Joe Biden's victory is very unlikely to change the outcome of the election and is mostly about politics and fundraising, according to election law experts.

Trump has repeatedly made unsubstantiated claims of voter fraud. He claims he won the Nov. 3 election and accused Democrats of trying to "steal" it from him.

The Trump campaign has said it is fighting for a "free, fair, and fully transparent election in which every legal ballot is counted and every illegal ballot is not counted."

But the lawsuits do not reflect this rhetoric, said Jessica Levinson, a professor at Loyola Law School in Los Angeles.

"In the political realm, we see accusations of massive voter fraud. But in court, if you look at the cases, it's totally different," Levinson said.

WHAT DO THE CASES SAY?

Since Election Day, the Trump campaign has brought suits in Pennsylvania, Michigan, Arizona and Georgia.

A common allegation in many of them is that Republican poll watchers were denied proper access to vote counting sites in Democratic-leaning areas.

The most sweeping cases, filed this week in Michigan and Pennsylvania, seek to halt officials in those states from certifying Biden as the winner.

In Pennsylvania, the Trump campaign alleged that a lack of observer access, combined with inadequate verification of voter identities and other factors, made mail-in voting untrustworthy.

In Michigan, the Trump campaign alleged that Republican poll observers were obstructed from viewing the counting of mail-in ballots in a Detroit convention center.

HAVE TRUMP'S LAWYERS ALLEGED FRAUD?

Despite Trump's rhetoric on Twitter, his campaign's initial lawsuits did not allege voter fraud.

In the Nov. 11 Michigan case, the campaign did include sworn statements from Republican poll watchers who suggested fraud may have occurred but provided scant evidence.

One Republican challenger said poll workers "were duplicating ballots to incorrect precincts in order to run two ballots through for the same person." He said he saw it happen 20 to 30 times, but did not say if he tried to challenge these alleged actions.

Karl Rove, a prominent Republican strategist, wrote in the Wall Street Journal on Nov. 11 that Trump's lawsuits have presented no evidence of the sort of systemic fraud that would be needed to overturn Biden's victory.

“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," Rove wrote.

Voters fill out their ballots on Election Day in Conshohocken, Pennsylvania, U.S., November 3, 2020. REUTERS/Rachel Wisniewski

HOW IS TRUMP FARING IN COURT?

Trump has scored a few narrow victories in Pennsylvania.

A judge on Nov. 5 granted his campaign's request to observe Philadelphia poll workers up close as they counted mail-in ballots. The campaign also won a ruling disqualifying a small number of mail-in ballots for first-time Pennsylvania voters who were unable to confirm their identification.

Judges quickly dismissed other Trump lawsuits, including one in Michigan relating to poll observer access and one in Georgia that sought a court order to not count late-arriving ballots.

WHAT IS TRUMP'S END GAME?

Legal experts said the lawsuits appear to be aimed at casting doubt over Biden's victory in closely contested states like Pennsylvania and Michigan.

If courts halted officials from certifying results in those states, it opens the door for Republican state legislatures to argue that he was the true winner and that the state's electoral votes should be awarded to him. The U.S. Congress would then have to decide which electoral votes to recognize.

Republican lawmakers in Pennsylvania  have already shot down this theory, saying the legislature has no role in awarding electoral votes.

WHAT IS TRUMP'S STRONGEST CASE?

Legal experts said the most promising case for Trump is one pending before the U.S. Supreme Court in which Republicans are trying to undo a decision allowing Pennsylvania election officials to count mail-in ballots postmarked by Election Day so long as they were received up to three days later.
 

Conservative justices declined to expedite the case before Election Day, but suggested they might revisit it.

The case has important implications for states because it could clarify the role of legislatures and courts in setting election rules.

It will not affect the Biden's win in Pennsylvania because state officials said only 10,000 ballots were received during the timeframe at issue. Biden's lead in Pennsylvania is more than 53,000 votes, according to Edison Research.

(Reporting by Jan Wolfe and Tom Hals; Editing by Noeleen Walder and Aurora Ellis)

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