As Biden Clinches Pennsylvania, Securing a Presidential Win, the Trump Campaign Promises More Litigation
Former Vice President Joe Biden spoke in Pittsburgh, Pennsylvania, on November 2, 2020. Biden has been elected the next president of the United States. (JIM WATSON/AFP via Getty Images)
Former Vice President Joe Biden is the projected next president of the United States, securing an additional 20 Electoral College votes from Pennsylvania — pushing him over the 270 threshold, even as vote counting continues in some states.
An hour before the presidential race was called, President Donald Trump falsely claimed he won the election by “a lot” on Twitter. A battleground state, Trump won Pennsylvania in 2016 by an approximate margin of around 0.7% over Hillary Clinton.
Despite news organizations including CNN, the AP, NBC and Fox projecting Biden as the president-elect, the Trump campaign has indicated the election is far from over, with plans to launch more litigation challenging the results in Pennsylvania and elsewhere. To understand how the state’s results might influence the Trump campaign’s next steps, FRONTLINE spoke with legal experts and tracked post-Election Day legal action.
“Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated,” President Trump said in a statement sent to reporters 15 minutes after Biden was announced the winner. “The simple fact is this election is far from over.”
The Republican National Committee is prepared to issue lawsuits that it claims will ensure transparency and access to the ballot-counting process, according to Mandi Merritt, the RNC’s national press secretary.
“We have a top-notch legal team, thousands of volunteer lawyers assembled, and are fully focused on upholding the letter of the law,” Merritt told FRONTLINE.
Litigation is President Trump’s reflex action, Justin Levitt, a Loyola University Law professor told FRONTLINE. But so far, Levitt doesn’t think any of the litigation launched will change the election’s result.
“Litigation isn’t a spell and doesn’t let you magic your way to a different answer,” Levitt said. “You need to point to an actual legal problem for litigation to deliver a result. And there simply isn’t one here.”
Myrna Perez, director of the Brennan Center’s Voting Rights and Elections Program, agrees. “We may see a few cases lingering around until the electors vote, but they are highly unlikely to be taken too seriously,” Perez told FRONTLINE.
One day before the election, on November 2, Trump called the Supreme Court’s late October decision to extend the deadline to receive absentee ballots in Pennsylvania “a VERY dangerous one” on Twitter. Then, on November 4, the Trump campaign filed suits to halt ballot counting in Pennsylvania and Michigan.
Benjamin Ginsberg, a Republican lawyer whose tenure as the Bush-Cheney campaign’s national counsel included the 2000 Bush-Gore recount, told FRONTLINE such lawsuits aren’t “particularly legitimate.”
“You need to count every vote,” Ginsberg said.
Trump has repeatedly cast doubt over the legitimacy of mail-in-ballots and indicated that he won’t accept the results of the election if he suspects fraud. The election is already the most litigated in recent U.S. history, but there may be more lawsuits to come.
Before the Trump campaign filed its suits, on October 28, Pennsylvania’s Department of State had already instructed election officials to separate ballots received by mail after 8 p.m. on Election Day and before 6 p.m. on November 6, the new deadline for potential reexamination. Then, on November 5, a Pennsylvania Commonwealth Court judge ordered ballots with missing proof of identification — a problem that can be remedied until November 9 — to be segregated from complete mail ballots. And on November 6, U.S. Supreme Court Justice Samuel A. Alito Jr. granted a GOP request to segregate ballots received after Election Day, but he did not direct election officials to stop counting them.
“We have to fight this on the ground,” Harmeet Dhillon, a committee member of the RNC and co-chair of Lawyers for Trump, told FOX on November 5, alleging noncompliance with a Philadelphia court ruling that went into effect at 10:30 a.m. that morning. The court ruled that poll watchers could be within 6 feet of ballot counters, much closer than the previous distance of 20 feet.
In a press release sent out to journalists at 4:10 p.m. that same day, Justin Clark, the Trump campaign’s senior counsel and deputy campaign manager, announced another lawsuit, claiming that “poll watchers of President Trump and the Republican Party” weren’t provided “meaningful” access to ballot counting in Philadelphia.
Laura Humphrey, the deputy director of communications and press for Pennsylvania’s Department of State, told FRONTLINE her office could not comment on active litigation. But Pennsylvania’s official guidance to ballot counters states that one authorized representative for each candidate, and one representative for each political party, can be present in the room where ballots are being counted.
Just because a lawsuit is filed doesn’t mean it has merit, Danielle Lang, co-director of voting rights and redistricting at the Campaign Legal Center, a nonprofit specializing in election law, told FRONTLINE.
“Voters need to blow past the rhetoric of candidates trying to stop the clock when the votes aren’t in their favor,” Lang said.
Priyanka Boghani contributed to this story.
For more on the historic 2020 presidential election, see Whose Vote Counts, a documentary from FRONTLINE, Columbia Journalism Investigations, Columbia Journalism School and the USA TODAY NETWORK, and The Choice 2020: Trump vs. Biden, FRONTLINE’s two-hour election-year special (disponible en español). Both are available to stream in FRONTLINE’s online library, on YouTube, in the PBS Video App and below.