Less than an hour after President Donald Trump falsely tweeted on Saturday that he had won reelection, The Associated Press and other media outlets declared Democratic nominee Joe Biden the winner in Pennsylvania, putting him over the 270 electoral vote threshold needed to win the presidential race. But even as Biden delivered his victory speech that evening, Trump falsely claimed the election was fraudulent, after months of questioning the validity of absentee ballots amid a pandemic that spurred millions to vote by mail.
Election law and security experts stress that there is nothing unusual or fraudulent about the way in which this year’s election was conducted — some say the process actually went smoother than it has in previous election years — a particularly notable feat given the backdrop of the global coronavirus pandemic.
“We had a very normal Election Day,” said Matthew Weil, director of the Elections Project at the Bipartisan Policy Center. Although there were scattered reports of technical problems here and there, Weil said, “we just didn’t see the kind of problems that we’ve seen on other election days. Part of that was because we had this release valve of early and absentee voting that we’ve never had before at this kind of level, and that really helped everything.”
Even so, Trump has not backed off the suggestion that the results of the election are illegitimate, and his campaign is still pursuing litigation on multiple fronts to challenge the process in several states — many of which have already been called for Biden. Experts say the Trump campaign’s legal strategy is unlikely to change the ultimate outcome of the presidential election, but a number of the president’s Republican allies have supported his team’s ongoing efforts to keep pursuing litigation to challenge the election results.
Here’s a look at where those lawsuits stand now, and how Trump’s efforts to sow doubt on the integrity of the electoral system could undermine trust in the process for years to come, according to legal experts.
How the Trump campaign is still relying on litigation to fight results
The Trump campaign’s legal strategy to influence the outcome of the election started well before Election Day, most notably with a case filed in Pennsylvania arguing that absentee ballots received after Nov. 3 should not be counted. Back in September, the state’s highest court had granted a deadline extension request filed by the Democratic Party, allowing Pennsylvania ballots received as late as Nov. 6 to be counted, as long as they were postmarked by Election Day.
This extension was contested by the Pennsylvania Republican Party, which argued it was unconstitutional, but the U.S. Supreme Court allowed the Nov. 6 deadline to stand. The high court also allowed a six-day deadline extension on absentee ballots in North Carolina after it was challenged by state Republicans.
Republicans continued their legal efforts in the days after the election as well, asking the Supreme Court to ensure that late-arriving ballots in Pennsylvania were being separated from all others until the litigation surrounding them was resolved. Supreme Court Justice Samuel Alito on Nov. 6 temporarily granted the GOP’s request that the segregation of these ballots be enforced.
But Pennsylvania secretary of state Kathy Boockvar said last week the number of segregated ballots didn’t appear to be enough to affect the outcome. Biden leads Trump in the state by a margin of more than 45,000 votes as of Tuesday evening. Nate Persily, a Stanford Law Professor who leads the Healthy Elections Project, said on Friday that he saw the Pennsylvania case as “dead in the water.”
The Trump campaign has continued to pursue legal action in other battleground states as well, including Georgia, Michigan and Nevada. Many of the lawsuits filed since the election have focused on greater access for election observers or incorrect counting of ballots.
Trump’s lawyers are free to continue to challenge election results up until Dec. 8, the so-called “safe harbor” deadline by when contests and controversies over electoral votes are required to be settled this election year. As Nate Persily stressed, “neither the media nor the concession speech has any relevance” on official vote totals, and results will not be finalized until states certify election results, electors cast their ballots on Dec. 14 and Congress reviews those votes on Jan. 6.
But while it is within the framework of U.S. election law to continue to file lawsuits, experts say it is unusual for a presidential campaign to drag out litigation efforts for this long when the results seem clear. Biden won the popular vote by more than 4 million and is ahead by a wide enough margin in battlegrounds states such as Pennsylvania and Nevada that there is no clear path to victory for Trump at this point.
Many have compared the legal challenges surrounding this year’s election to the 2000 presidential race, when George W. Bush led Al Gore in Florida by a margin of just 537 votes. The Supreme Court denied a recount requested by the Gore campaign, securing Bush’s victory. But “this situation is so different from 2000,” said Ned Foley, an election law professor at the Ohio State University. He noted that these results hung on a tiny margin in just one state, rather than a margin of thousands of votes across multiple states, as is the case with this year’s race.
The focus of most of these lawsuits is quite narrow and with the margin of votes Biden currently has in these states, the litigation would have to clear a “very high bar” to convince a state court to overturn the results of an election, said Foley. “Courts are very reluctant to overturn elections,” he said, adding that if a campaign asks for this, judges typically want to see proof not only that ballots were cast illegally, but that the number of illegal ballots cast made a difference in the outcome of the race.
The Trump campaign has repeatedly stressed the importance of counting all “legal” ballots cast in this election, suggesting that a significant number of illegal ballots have somehow made their way into current vote counts. But Foley said he had not seen “any evidence of significant numbers of illegal ballots that would even come close” to swinging the election in the president’s favor.
“I don’t see a way for this strategy to be successful,” Foley said. “It needs to be successful not just in one state, but in several states.”
“The processes that the individual states have in place require ballot-by-ballot, precinct-by-precinct, county-by-county findings of the illegal ballots and fraud,” Ben Ginsberg, a Republican election lawyer who worked on the Bush v. Gore case, said on Monday in an interview with the PBS NewsHour’s Judy Woodruff. “And, so far, in the evidence presented by the Trump campaign, there is not close to enough to overturn the results of the election.”
Judges dismissed cases in Michigan and Georgia last Thursday — one that asked for a halt to vote counting because the campaign claimed that its poll watchers had been denied sufficient access to observe ballot counting, and another that alleged 53 late absentee ballots had been wrongfully counted.
On Friday, a federal judge rejected a lawsuit filed by the Trump campaign in Nevada’s Clark County that called for a stop to automated signature verification, and would have slowed down the vote counting process. On Saturday, the Trump campaign filed yet another lawsuit in Arizona alleging that election officials in Maricopa County incorrectly rejected votes.
Lawsuits continued into this week, most recently on Monday with one alleging that Pennsylvania’s mail-in ballot system was unlawful because election officials failed to destroy duplicate ballots.
So far most judges have dismissed these cases on the grounds there has been scant evidence provided by the campaign of any wrongdoing. In one exchange with the U.S. District Judge Paul Diamond, a Trump campaign lawyer admitted that a “non-zero” number of observers had, indeed, been permitted to watch poll workers in Pennsylvania, even though they had filed a complaint alleging they did not have sufficient access.
“I’m sorry, then what’s your problem?” Diamond responded to the lawyer’s answer.
“I think what’s happening now is you’d have to litigate on so many fronts to make a difference that it’s pretty pointless,” Persily said of the Trump campaign’s legal strategy. With Biden projected to win more than 300 electoral college votes, Persily said, “everyone is going to start realizing that this is a fool’s errand.”
Persily said the Trump campaign’s ongoing efforts to litigate the election are “an attempt to try to discover things and create doubt” rather than “adjudicating the result” of the election. “They are down by too much to” find themselves in a place “where the litigation will prove fruitful, unless there is some big surprise,” he added.
Still, the Trump campaign on Tuesday evening seemed optimistic about their litigation efforts. They plan to file a lawsuit in Michigan asking the secretary of state not to certify election results until they can verify all votes were cast lawfully. “We do not think we’re going to eat the apple in one bite, but a large part of these lawsuits is to gather further information,” the Trump campaign’s Tim Murtaugh said, when asked if their new lawsuit in Michigan will overturn Biden’s current lead of 148,645 votes.
With Biden leading in Georgia by a margin of just 0.2 percentage points, it’s likely either election officials there, or the Trump campaign, will force a recount in the state. The Trump campaign is also pushing for recounts in Wisconsin, Arizona and Nevada. But election law experts stress that these recounts, which are costly for the campaign as it has to pay for recounts it requests, are not likely to have an impact on the outcome of the election.
Although there is consensus among most legal experts that the Trump campaign’s litigation efforts will not go far enough to change the election outcome, Trump’s unfounded claims of fraud have been boosted by allies of the president, including Senate Majority Leader Mitch McConnell and Senate Judiciary Chair Lindsey Graham. Georgia’s Republican senators on Monday called for the resignation of their secretary of state, Brad Raffensperger, who himself is a Republican, under pressure from the president. Attorney General William Barr on Monday authorized federal prosecutors to get involved in looking at allegations of “vote tabulation irregularities,” reversing a longstanding guidance the Justice Department had to refrain from getting involved in such investigations until election results have been finalized in January. The move prompted the top DOJ official in charge of election crimes, Richard Pilger, to resign.
How Trump’s false claims about voter fraud could undermine trust in the process
Trump has for months made misleading statements about the U.S. electoral process, which arguably has led to heightened distrust and confusion among the public. The effects of his rhetoric could have a much further-reaching impact than his team’s short-term litigation efforts, say voting rights advocates. Seventy percent of Republicans recently said they did not believe the 2020 election was free and fair, according to a POLITICO/Morning Consult Poll, indicating that fraud allegations have already led to an erosion of trust in this year’s results. Among all the individuals polled however, the share of those who had trust in this election was higher — 60 percent said they believed it was either probably, or definitely free and fair.
Although the media’s projection of the presidential race winner is informal, The Associated Press has for almost two centuries made mostly accurate calls that help inform the public who will be the next president-elect of the United States. While vote tallies in states such as Arizona are still being tabulated, there is no reason to expect the Electoral College votes cast on Dec. 14 will differ significantly from calls made by the AP and other media outlets, said Ned Foley.
Election law experts and voting rights advocates also stress that there is scant evidence of widespread fraud this year.
“We had a really kind of clean and record turnout election on both sides of the aisle this year,” said Danielle Lang, co-director of voting rights and redistricting at the Campaign Legal Center. “The Republicans and Democratic voters turned up and there is no evidence whatsoever of fraud in this election.”
In a Wall Street Journal op-ed published last week, Persily and his colleague at the Healthy Elections Project, Charles Stewart III, wrote that there is currently no evidence of any “major failure of election administration that cast the legitimacy of the outcome into question.” A record number of mail-in ballots were cast and fewer of them were rejected than in 2016.
But the president’s words have had a negative effect on public trust in the election results. Trump supporters gathered at vote tabulation sites in Phoenix, Detroit and Philadelphia last week to protest vote counts that showed Biden winning, chanting phrases such as “protect our vote” and holding signs that said “stop the steal” and “stop the cheat.” Over the weekend, armed protesters in Arizona called the results a “coup.”
Voting rights advocates worry that doubt surrounding the election results could undermine trust in the electoral system going forward.
“There are going to be 50 million people who think that this election was stolen,” Persily said. “And that has long-term problems for democratic legitimacy in the U.S. People are going to regard Biden as an illegitimate leader. And that is very disturbing. And it’s going to lead to a lot of acrimony.”
“It’s really discouraging to see the president of the U.S. continuing to whip up mistrust in the elections on purpose,” Lang said. But, she added, “I think that it’s a vocal minority that believes him. And what I think is important is that elected officials and members of the media continue to re-affirm that this has worked, and this is democracy at its best.”
Meredith Lee contributed reporting.