Trump’s election ‘legal challenges’ won’t change 2020 results. Can he win by losing?
The weaknesses across these cases illustrate how the Trump campaign isn’t using the legal process; it’s abusing it.
President Trump spoke about the election results at the White House last Thursday, Nov. 5.Carlos Barria / ReutersNov. 13, 2020, 12:36 PM PSTBy Steve Vladeck, professor at the University of Texas School of Law and Lisa Rubin, off-air legal analyst with “The Rachel Maddow Show”
Even as a growing number of congressional Republicans concede that former Vice President Joe Biden won the presidential election, others refuse to do so publicly, insisting, as Sen. Lindsey Graham has, that we hold off “until the legal challenges are decided.” That talking point is a convenient deflection, but it’s also willfully misleading insofar as it implies that, much as it did in 2000, the legal process might affect the election’s outcome.
That talking point is a convenient deflection, but it’s also willfully misleading.
Not only is the factual scenario materially different from 2000 (when the whole election came down to a single state in which the candidates ended up 537 votes apart), but the lawsuits the Trump campaign has filed thus far are, with one exception, embarrassingly thin or entirely picayune. One of the campaign’s sole “victories,” for instance, was a Pennsylvania state court ruling requiring observers to be allowed 6 feet from the vote counters, rather than 10 feet. No vote tallies were affected in the process — and even that order could still be overturned by Pennsylvania’s Supreme Court.
Even the one claim with potentially substantive legs — that Pennsylvania should not count certain late-arriving mail-in ballots — can’t possibly have an impact on the election given the size of Biden’s lead there.
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We’re not the first to point out how weak these claims are, and we won’t be the last. Our goal in this piece, rather, is to drive home exactly what’s wrong with these lawsuits. The weaknesses across these cases illustrate how the Trump campaign isn’t using the legal process; it’s abusing it. Whatever that may say about the lawyers involved in such cases, it should be a strong message to the courts — to act quickly not only to deny the “emergency” relief the Trump campaign seeks, but also, where appropriate, to dismiss these cases at their outset. The judicial system should not allow the campaign to win even by losing.
In particular, we’ve focused on five common flaws in these cases: The overreliance on hearsay; the wild speculation in lieu of actual evidence; the reliance upon “witnesses” or putative victims with serious credibility problems; the reframing (or refiling) of already-disproven or denied claims; and, perhaps most important, the extent to which most of these claims would not actually change the result.
The first common problem in these lawsuits is their reliance on hearsay — on individuals making allegations not about what they saw, but about what (often unnamed) others told them that they had seen. Thus, in a case brought in the Michigan Court of Claims last week, the Trump campaign and a sole elector, Erik Ostergren, lost their bid to stop the counting of all Michigan absentee ballots until an “election inspector” from each party was allowed to observe each absentee voter counting board.
While the court found the claims defective on several fronts, chief among them was a glarin