President Donald Trump and the Republican Party have begun to file their promised lawsuits challenging the vote-counting process — but many of them make no sense.
Trump’s bizarre, haphazard legal strategy to disrupt vote counting, briefly explained
It’s not even clear what Trump’s lawyers hope to accomplish if they win any of their lawsuits.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
For example, here are the facts alleged by the Trump campaign in In re Enforcement of Election Laws, a suit filed in Chatham County, Georgia, in an apparent effort to disrupt vote counting in that county:
Sean Pumphrey, a poll watcher sent by the Republican Party to observe ballot counting, saw an election worker “bring a stack of ballots from a back room and place on a table.” Pumphrey then “left the room for a and [sic] returned a short time later.” But when he’d returned, “the stack of ballots were no longer on the table.”
Based on these claims, and the claim that Pumphrey and a fellow poll watcher were “not able to locate the stack” after traveling to another location where ballots were processed, the Trump campaign and the Georgia GOP complained that they “do not know whether absentee ballots in Chatham County are being sufficiently accounted for” or “safely stored ... in accordance with Georgia law.”
As a general rule, courts do not give much credence to witnesses who may not have mastered the concept of object permanence. But In re Enforcement is fairly typical of the penny-ante lawsuits that Trump’s lawyers filed in a handful of key states that are likely to decide the 2020 presidential election. At least some seem to rest on dubious or incomplete allegations. And it’s not clear what legal benefits Trump would gain if his campaign prevails.
Many of the Trump campaign’s lawsuits rest on minor complaints that are unlikely to matter
In Michigan, the Trump campaign filed a lawsuit seeking to temporarily halt ballot counting in that state (Democratic nominee Joe Biden currently leads President Trump in Michigan by a comfortable margin). The campaign’s Michigan lawsuit alleges two legal violations — that a poll watcher in a small Michigan county was not allowed to observe some votes being counted, and that poll watchers weren’t allowed to “observe the video of the ballot boxes into which [certain] ballots are placed.”
As the Detroit Free Press notes, the state law that the Trump campaign relies on to claim a right to observe video “makes no reference to allowing poll challengers to view video, merely that video surveillance is required for drop boxes installed after Oct. 1.”
A similar Pennsylvania lawsuit rests on the testimony of another Trump poll watcher, who claims that he was not allowed to watch the ballot counting from a position where he could, in the words of a judge who heard this lawsuit, “observe the writing on the outside of the ballots.”
As Judge Stella Tsai noted in a very brief opinion ruling against the Trump campaign, Pennsylvania state law provides that “observers are directed only to observe and not to audit ballots,” and thus election officials complied with their legal obligations even if this one poll watcher was not allowed to see everything he wanted to see. The relevant state law merely provides that “watchers shall be permitted to be present when the envelopes containing official absentee ballots are opened and when such ballots are counted and recorded.”
At least so far, the stakes in these lawsuits are fairly low — though Judge Tsai ruled that the state is not required to let poll watchers stand wherever they want, she did note that she would not “discourage” election officials from “considering the implementation of arrangements to allow for an additional corridor for observation along the side of the canvassing tables if feasible.”
Some poll watchers have engaged in disruptive tactics that go well beyond the legitimate role of an election observer. A man wearing a horror-movie mask presented credentials allowing him to act as a poll challenger in Detroit, Michigan, for example. But Detroit police removed him from the site after he reportedly began yelling and using racist language.
There are, in other words, legitimate reasons why election officials may wish to restrict the movements or the actions of poll watchers.
The Trump campaign is involved in one lawsuit that could be quite consequential
Trump’s lawyers did take one action on Wednesday, however, that could prove significant in the future.
In Republican Party of Pennsylvania v. Boockvar, the GOP asked the Supreme Court to toss out Pennsylvania ballots that arrive after Election Day — the state supreme court ruled that certain absentee ballots that arrive within three days of the election shall be counted. Though the Supreme Court has thus far rejected the GOP’s requests to invalidate these ballots, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all signaled in a pre-Election Day opinion that the Court may order these ballots tossed out after the election is over.
On Wednesday, the Trump campaign filed a motion to “intervene as petitioner” in the Republican Party lawsuit. The practical impact of this motion, if it is granted, is that it would allow the Trump campaign to go directly to the Supreme Court to ask that late-arriving ballots in Pennsylvania be tossed out — rather than having to file a new lawsuit in a trial court.
The Republican Party case will only truly matter if Pennsylvania decides the presidential election, and if the race is close enough that the outcome turns on whether the late-arriving ballots are counted.
Voters who mailed their ballot before Election Day, and whose ballots arrive within the three-day window, fully complied with the rules that were in place at the time that those ballots were cast. The state supreme court’s decision, after all, is currently in full effect.
The Republican Party lawsuit, in other words, asks the justices to change the rules governing elections in Pennsylvania, and then retroactively disenfranchise voters who did not comply with the new rules.
It’s unclear whether there are five votes on the US Supreme Court who would strip people of the right to vote because those voters failed to predict that the justices would change the rules after the election is over. But it is at least possible that the Supreme Court will try to swing the election to Trump by changing the rules after all the votes have already been cast.
