Election 2020

Republican Lawsuits Cannot Deliver the Evidence Trump Needs To Prove He Actually Won the Election

Even if the GOP's complaints are valid, they do not prove a vast anti-Trump conspiracy.


After last week's election, Donald Trump supporters in Nevada claimed that 10,000 people had voted illegally in Clark County, which includes Las Vegas. Even assuming that all 10,000 voted for Joe Biden, that would not have been enough for Trump to win Nevada, where the former vice president beat him by nearly 37,000 votes. Still, such a large number of illegal ballots would have counted as serious and substantial voting fraud. But by the time Republicans filed a lawsuit challenging the results in Clark County, The Washington Post notes, the claim of 10,000 fraudulent votes "had been whittled down drastically" to a single case involving a woman who said her mail-in ballot had been stolen, although the signature on it matched hers.

That incident illustrates a broader pattern. While the president insists the election was "stolen" through large-scale, orchestrated fraud, the post-election lawsuits fall notably short of making that case. With the exception of the dubious argument that the longstanding practice of voting by mail is inherently unconstitutional, the claims in the lawsuits, even if accepted as true, are weak tea compared to the strong brew cooked up by the president, who alleges a vast anti-Trump conspiracy that denied him his rightful victory.

"Even Trump's campaign and allies do not allege widespread fraud or an election-changing conspiracy," the Post notes. "Instead, GOP groups for the most part have focused on smaller-bore complaints in an effort to delay the counting of ballots or claims that would affect a small fraction of votes, at best."

Consider Pennsylvania, whose 20 electoral votes clinched Biden's election. Trump was dismayed that his initial lead in Pennsylvania disappeared as election officials counted mail-in ballots, which strongly favored Biden, largely because Trump had for months discouraged his supporters from using that method. According to Trump, corrupt Democrats in Pennsylvania were determined to "find" enough ballots—hundreds of thousands, by his account—to assure Biden's victory. In the end, Biden won Pennsylvania by more than 47,000 votes.

Tasked with substantiating Trump's claim that he actually won Pennsylvania, White House Press Secretary Kayleigh McEnany started a press conference on Monday by agreeing that Democrats are corrupt. But unlike Trump, who claims Democratic election officials manufactured phony votes, McEnany suggested their role was more passive. By opposing election security measures such as voter ID laws, she said, Democrats are "welcoming fraud" and "welcoming illegal voting."

In McEnany's account, Democrats looked the other way when Biden supporters cast illegal ballots. But if that alleged laxness delivered Pennsylvania to Biden, it still would have required hundreds of thousands of fraudulent votes, cast by people who independently decided to risk severe criminal penalties in the hope that enough Biden supporters would do likewise to defeat Trump. Given what we know about the rarity of such crimes in prior elections, this theory is even less believable than the orchestrated corruption that the president imagines.

When McEnany ventured beyond vague insinuations, she averred that Democrats were "trying to keep [Republican] observers out of the count room." Last week, Republicans used that claim in a vain attempt to halt vote counting in Philadelphia "so long as Republican observers are not present." The complaint, filed in the U.S. District Court for the Eastern District of Pennsylvania, alleged that the Philadelphia County Board of Elections "is intentionally refusing to allow any representatives and poll watchers for President Trump and the Republican Party."

But during a hearing before U.S. District Judge Paul Diamond, a Trump campaign lawyer conceded "there's a nonzero number of people in the room." Diamond (a George W. Bush appointee, in case that matters) pressed the question:

Diamond: I'm asking you as a member of the bar of this court: Are people representing the Donald J. Trump for President [campaign], representing the plaintiffs, in that room?

Lawyer: Yes.

Diamond: I'm sorry, then what's your problem?

In the end, the dispute was resolved by an agreement to allow up to 60 observers from each party in the count room. The Trump campaign also obtained a state court order allowing it to "observe all aspects of the canvassing within 6 feet, while adhering to all COVID-19 protocols." The campaign had complained that its observers were kept too far away to see what was going on, and Trump bragged that we "won the case." Yet despite that victory, the count continued, and Biden won.

Republicans also argue that Pennsylvania election officials violated the law when they gave voters a chance to correct (or "cure") mail-in ballots that otherwise would have been invalid. As Eric Boehm notes, a state judge rejected that argument on Friday. A federal judge seemed equally skeptical.

Leaving aside the legal merits of these lawsuits, there is no reason to believe they would change the outcome of the election even if they were successful. The situation is similar in Michigan, where Biden won by more than 146,000 votes. As in Pennsylvania, Republicans complain that their observers were not given an adequate opportunity to monitor the count. But even assuming their complaints are valid, stealing the election in Michigan still would have required a massive conspiracy, and to believe that happened requires more evidence than Republicans have been able to muster.

Republicans are leaning heavily on an affidavit from Detroit election worker Jessy Jacob. In September, she says, her supervisor instructed her to "adjust the mailing date" of absentee ballots to make it appear they arrived earlier than they actually did. Jacob also says she was told, contrary to Michigan law, not to ask voters for ID.

Jacob says she "observed, on a daily basis, City of Detroit election workers and employees coaching and trying to coach voters to vote for Joe Biden and the Democrat Party." The coaching allegedly consisted of suggesting that people vote a straight party-line ticket instead of voting separately in each race.

A lawsuit based on Jacob's affidavit and claims by two Republican poll challengers, filed this week in Wayne County court by the Great Lakes Justice Center, alleges several other "instances of fraud." The complaint says election workers accepted ballots from people who did not appear on the list of qualified voters, failed to verify signatures on mail-in ballots, processed "unsecured and unsealed ballots," accepted ballots that "appeared after the election deadline," "used false information [such as fictitious birthdates] to process ballots," refused to record challenges by poll observers, and "allowed ballots to be duplicated by hand without allowing poll challengers to check if the duplication was accurate."

The city of Detroit, one of the defendants, says the lawsuit is "a grab bag of falsehoods," based on "hearsay, speculation and unfounded conspiracy theories." It adds that the plaintiffs "don't understand how elections function."

One example cited by the city is Jacob's backdating claim. "What she calls 'backdating' is simply dating," says David Fink, an attorney representing Detroit. "The actual date of receipt of the ballot was stamped on the envelope. We followed a proper process by putting that date into the system. The fact that it was done after the ballot was received has absolutely no significance." More generally, he says, "this case is not based upon actual evidence of any election fraud or misconduct."

But let's assume that the allegations about illegal election practices in Detroit hold up. Let's also assume that fraudulent votes in Wayne County gave Biden his victory in Michigan. These are heroic assumptions, since they would mean that at least 17 percent of the ballots cast in Wayne County were illegal, which would be a dramatic departure from recent experience with voter fraud. Even then, losing Michigan's 16 electors would leave Biden with enough electoral votes to beat Trump.

That fanciful scenario highlights the gap between Trump's claims and even the most serious allegations that Republicans are making in court. "We intend to ensure that every lawful voter has their vote counted in accordance with the law," Republican National Committee Chair Ronna McDaniel said at Monday's press conference, "that observers are granted the access they are due under state law and that any irregularities that have occurred, whether by malicious intent or incompetence, are investigated to the fullest extent allowed under the law. We will not give up on this process until every last issue has been uncovered."

Republicans have a right to pursue these claims, and some of them might be successful. But such "irregularities" are a far cry from the sort of malfeasance that would have been required to fraudulently anoint Joe Biden the president-elect.

"Do you know that fraudulent votes were actually cast, or are you simply saying we don't know?" a reporter asked McEnany. "What we are asking for here is patience," she replied. "We're hearing these reports. We're seeing them come in. We are vetting them. We are getting affidavits. So right now we would point you to all of that. That information is publicly available. But what we're asking for right now is patience."

If McEnany meant people should not jump to conclusions about the validity of specific Republican complaints, that is unobjectionable. But if she meant the country must wait until Trump is persuaded that he lost the election, I'm not sure anyone has that much patience.