The Facts on Trump’s Post-Election Legal Challenges
By Eugene Kiely, Rem Rieder, Jessica McDonald, Brooks Jackson, D'Angelo Gore and Angelo Fichera
Posted on November 20, 2020
On Nov. 19, President Donald Trump’s legal team spouted a gusher of false and unfounded allegations of voter fraud at a 90-minute press conference.
We could fact check it, but we’re not going to. We’re not going to fact check Rudy Giuliani, Trump’s personal lawyer, for repeating a bogus claim that voters in the Democratic counties of Allegheny and Philadelphia in Pennsylvania “were allowed to fix” ballot errors, but those in Republican areas “were given no such right.” We already wrote about that claim — and it is false.
We’re also not going to fact check Sidney Powell’s wild conspiracy theory about a “massive influence of communist money through Venezuela, Cuba, and likely China in the interference with our elections here in the United States.” Powell provided no evidence for it, not even to Fox News host Tucker Carlson.
“When we kept pressing, she got angry and told us to stop contacting her,” Carlson said on his Nov. 19 show. “When we checked with others around the Trump campaign, people in positions of authority, they also told us Powell had never given them any evidence to prove anything she claimed at the press conference.”
So, instead of writing about Giuliani and Powell, we took a cue from Republican Sen. Ben Sasse of Nebraska, who said this after the press conference: “What matters most at this stage is not the latest press conference or tweet, but what the President’s lawyers are actually saying in court. And based on what I’ve read in their filings, when the Trump campaign lawyers have stood before courts under oath, they have repeatedly refused to actually allege grand fraud — because there are legal consequences for lying to judges.”
Below we look at what the president’s lawyers have been saying in court in key swing states and the outcome of their legal challenges. What sticks out are two things: a lack of evidence of voter fraud and a long string of legal defeats and setbacks.
Donald J. Trump for President, Inc., v. Bucks County Board of Elections
Outcome: Denied by the Bucks County Court of Common Pleas
Facts: The Bucks County board rejected 918 ballots as “legally insufficient,” because of such deficiencies as “a lack of signature or a lack of privacy envelope,” as Bucks County Court of Common Pleas Judge Robert Baldi wrote in his order. The Trump campaign sought to toss out an additional 2,177 absentee ballots that the county accepted as valid votes.
On Nov. 19, the judge rejected the campaign’s petition and ordered all 2,177 ballots to be counted, dismissing the alleged deficiencies as minor.
The judge’s order said, for example, that 1,196 ballots being challenged by the Trump campaign contained a partial date or no date on the outer envelope. But the ballots were submitted in time to be counted since both parties agreed in their “stipulation of facts” that all 1,196 ballots “were completed and received between October 7th and November 3rd, 2020,’” which was the date of the election.
The judge also noted that the Trump campaign provided no evidence of fraud.
“It must be noted that the parties specifically stipulated in their comprehensive stipulation of facts that there exists no evidence of any fraud, misconduct, or any impropriety with respect to the challenged ballots,” Judge Baldi, a Republican, wrote. “There is nothing in the record and nothing alleged that would lead to the conclusion that any of the challenged ballots were submitted by someone not qualified or entitled to vote in this election. At no time did Petitioners present evidence or argument to the contrary.
Donald J. Trump Campaign, Inc., v. Philadelphia County Board of Elections
Status: Five cases were denied by Philadelphia Court of Common Pleas; now headed to Pennsylvania Supreme Court
Facts: The Trump campaign filed five appeals seeking to toss out more than 8,000 absentee and mail-in ballots that were all signed by the voters on ballots’ outer envelopes, but didn’t have one or more of the following on the outer envelopes: their printed name, address or date. Most of them — 4,466 ballots — had a signature and date, but were missing a hand-printed name and address.
On Nov. 13, Philadelphia Court of Common Pleas Judge James Crumish denied all five cases. In each of the five orders, the judge described the Trump’s campaign arguments as “meritless,” writing that the campaign made no allegations of fraud and “concedes that all ballots by a qualified elector in this category were timely received.”
The Trump campaign appealed the decisions, which will now be heard by the Pennsylvania Supreme Court.
Donald J. Trump Campaign, Inc., v. Kathy Boockvar, Secretary of the Commonwealth
Outcome: Order granted
Facts: In a rare Trump win affecting a relatively tiny number of ballots, Commonwealth Court Judge Mary Hannah Leavitt issued an order on Nov. 12 preventing counties from counting any mail-in or absentee ballots for which voters had supplied missing identification information after Nov. 9.
The judge ruled that Boockvar “lacked statutory authority” to grant voters an extra 3 days to supply any missing information.
The order can have no effect on the outcome. Biden held about a 55,000-vote lead over Trump at the time the order was issued. That lead has since grown to more than 81,000 votes as counting of other mail-in, absentee and provisional ballots continues.
Donald Trump for President, Inc. v. Philadelphia County Board of Elections
Facts: The Trump campaign filed suit on Nov. 5 in federal court seeking to stop Philadelphia from counting mail-in and absentee ballots, alleging that city election workers were processing ballots “without any observation by any representatives or poll watchers of President Trump and the Republican Party.”
But, under questioning by U.S. District Judge Paul S. Diamond, Trump campaign lawyer Jerome Marcus admitted that there were Republican observers present — rather famously saying there were “a nonzero number of people in the room.”
Donald J. Trump For President Inc., v. Montgomery County Board of Elections
Facts: The Trump campaign and others filed a petition on Nov. 5 to toss out nearly 600 ballots accepted by the Montgomery County Board of Elections over the campaign’s objections.
The Trump campaign alleged that the ballots should have been rejected because the voters failed to fill out their address on the outer envelope of their absentee and mail-in ballots. The Pennsylvania Election Code, however, does not specifically require voters to provide their address on the outer envelope of mail-in or absentee ballots.
On Nov. 13, Court of Common Pleas Judge Richard P. Haaz sided with the Montgomery County Board of Elections. The judge found that “the Board properly overruled Petitioners’ objections to all 592 changed ballots. These ballots must be counted.”
The judge also noted that the Trump campaign provided no evidence of fraud.
At a hearing, the court asked the petitioners if they were “claiming that there is any fraud in connection with these 592 disputed ballots” to which Jonathan S. Goldstein, the petitioner’s attorney, replied, “To my knowledge at present, no.”
On Nov. 13, the Trump campaign filed an appeal to the Commonwealth Court of Pennsylvania, which the campaign withdrew on Nov. 18.
Donald J. Trump for President, Inc., et al v. Kathy Boockvar et al
Status: U.S. District Judge Matthew W. Brann heard oral arguments on Nov. 17
Facts: The Trump campaign filed suit in federal court on Nov. 9 seeking to prevent Pennsylvania from certifying its election results. As an alternative, the campaign sought to certify the state’s results without including 682,479 mail-in ballots from the heavily-Democratic counties of Philadelphia and Allegheny, claiming those ballots were processed “without review by the political parties.” But that request to exclude the ballots in those two counties was later withdrawn in an amended complaint. (In a separate case, the Pennsylvania Supreme Court ruled that Philadelphia gave both parties adequate access to review the ballot counting.)
The suit broadly alleges that the state had created an “illegal two-tiered voting system” that placed fewer restrictions on mail-in ballots and inviting voter fraud. In the unofficial results, Biden received 1,993,186 mail-in votes, while Trump received 594,156, and won the state by 81,384 votes, according to the Pennsylvania Department of State.
The Ohio-based law firm of Porter Wright Morris & Arthur filed the suit, but a day later withdrew from the case. The judge allowed two other Trump campaign lawyers to withdraw from the case just one day before the scheduled oral arguments on Nov. 17, resulting in Giuliani petitioning the court to help represent the Trump campaign.
In his oral arguments, Giuliani — without providing evidence — described the suit as a part of “nationwide voter fraud” involving “at least 10 other jurisdictions.” He baselessly claimed the Democrats took advantage of the COVID-19 pandemic to expand the use of mail-in ballots to steal the election from Trump.
U.S. District Judge Matthew Brann told Giuliani that a ruling in the Trump campaign’s favor would disenfranchise more than 6.8 million voters who cast ballots in the Nov. 3 election, Associated Press wrote. “Can you tell me how this result could possibly be justified?” Brann asked. Giuliani responded by claiming “the scope of the remedy is because of the scope of the injury.”
Republican Sen. Pat Toomey, of Pennsylvania, when asked about Giuliani’s legal arguments in the case, said: “Let me just say, I don’t think they have a strong case.”
In Re: The 2020 Election for President of the United States
Outcome: Partial recount has been ordered by the Wisconsin Election Commission
Facts: The Trump campaign filed a petition for a recount in two populous Wisconsin counties with large Democratic majorities, Milwaukee and Dane, which includes the state capital, Madison. It decided not to seek a statewide recount. Biden won the state by about 20,000 votes.
Under Wisconsin law, a losing candidate can demand a recount if the margin is 1 percentage point or less. But the state only pays for the recount if the margin is less than 0.25 points. The losing candidate must pay for it if it is more than that, as Biden’s lead is in Wisconsin.
The Trump campaign has submitted a $3 million payment for the recount, according to the Wisconsin Election Commission. A statewide recount would have cost about $8 million. Biden won each of the counties by over 180,000 votes. It is unlikely that a recount would reverse the statewide results given the size of Biden’s margin.
The recount is to be completed by Dec. 1, when the state is supposed to certify the results.
In its petition seeking the recount, the Trump campaign said that “[m]unicipal clerks throughout the State of Wisconsin illegally altered absentee ballot envelopes by independently adding witness addresses to absentee ballot envelopes that were returned to the clerk without a witness address supplied,” as required by Wisconsin law.
It said the clerks did so following “illegal guidance” from the Wisconsin Election Commission, but the campaign has presented no evidence of wrongdoing. David Canon, a University of Wisconsin-Madison political science professor, said such charges sounded more like something that belonged in a lawsuit rather than a request for a recount. “In a recount, all you are doing is recounting the ballots to make sure they were recorded properly,” Canon told WMTV, an NBC affiliate in Madison.
In re: enforcement of election laws and securing ballots cast or received after 7 p.m. on November 3, 2020
Outcome: Dismissed by a state judge
Facts: A state superior court judge threw out a suit brought by the Trump campaign and the Georgia Republican Party over absentee ballots in Chatham County.
In the suit, the Trump campaign expressed concern that absentee ballots received after 7 p.m. on Election Day, when the polls closed, were being mixed with ballots received before the deadline.
The suit said that the late-arriving ballots were supposed to be segregated from the other ballots and ultimately destroyed. But, the suit alleged, a poll watcher “witnessed absentee ballots that had not been properly processed apparently mixed into a pile of absentee ballots that was already set to be tabulated. The proper chain of custody for the ballots was not followed.”
The suit asked the court to require the Chatham County Board of Elections to “collect, secure, and safely store all absentee ballots received by the CCBE after 7:00 P.M. on Election Day and provide an accounting of all such absentee ballots, including the number of ballots received after 7:00 P.M. on Election Day, the name of the absentee voter, and the time and date that such absentee ballot was received, to Petitioners.” It said the judge should then order the elections board to hold onto the ballots and await further instructions from the court.
In dismissing the petition, Superior Court Judge James Bass said “the Court finds that there is no evidence that the ballots referenced in the petition were received after 7:00 p.m. on election day, thereby making those ballots invalid. Additionally, there is no evidence that the Chatham County Board of Elections or the Chatham County Board of Registrars has failed to comply with the law.”
Aguilera v. Fontes
Facts: One named and 10 anonymous voters filed a lawsuit on Election Day against Maricopa County, Arizona, claiming the county-issued Sharpie markers they used to fill out their ballots had rendered voting tabulation machines unable to record their votes and that they had not been allowed to cast new ballots.
Similar claims about Sharpie markers have also circulated online, as we have written.
The complaint argued that this could have happened to others and asked that any voter using a Sharpie be allowed to cure their ballot and to observe their vote being counted. County officials, however, have explained that the use of Sharpies does not pose a problem and that all votes would be recorded.
Donald J. Trump for President Inc. v. Hobbs
Outcome: Dismissed as moot
Facts: A Maricopa County Court judge Nov. 13 dismissed a Trump campaign lawsuit alleging “systemic poll worker error” in the county after campaign lawyers admitted that the case would not change the result of the presidential race.
Initially, the suit, which also included the Republican National Committee and the Arizona Republican Party as plaintiffs, contended that issues related to “overvoting,” or selecting more than one candidate for the same office, affected “up to thousands” of votes. But there were only 191 presidential ballots with overvotes.
Specifically, the suit claimed that poll workers had improperly pushed through ballots that were flagged as having multiple votes without giving voters the opportunity to rectify any potential errors. The campaign argued that Arizona should delay its vote certification until such ballots could be manually inspected.
No witnesses for the Trump campaign, however, could confirm that their votes had not been recorded. In court, Trump campaign lawyer Kory Langhofer stated that he was “not alleging fraud” or “that anyone is stealing the election,” but instead was raising concerns about a “limited number of cases” involving “good faith errors.”
The judge dismissed the campaign’s claims as moot and with prejudice, meaning the decision cannot be retried.
Donald J. Trump for President Inc. et al v. Michigan Secretary of State Jocelyn Benson
Status: Rejected by Michigan Court of Claims; appealed to Michigan Court of Appeals
Facts: On Nov. 4, the Trump campaign filed to have a state claims court immediately stop the counting of Michigan’s absentee ballots until a representative of each political party was able to observe the process. The campaign alleged that co-plaintiff Eric Ostergren, who was identified as a certified election challenger and registered Michigan voter in Roscommon County, was “excluded from the counting board during the absent voter ballot review process.”
The campaign further alleged that Michigan Secretary of State Jocelyn Benson was violating state election law by “allowing absent voter ballots to be processed and counted without allowing challengers to observe the video of the ballot boxes into which these ballots are placed.” The campaign asked the court to order the secretary of state to segregate all absentee ballots submitted at those drop boxes.
But in her written ruling denying the requests on Nov. 6, Judge Cynthia Stephens said the campaign’s case against Benson didn’t hold up.
Stephens noted that Ostergren’s complaint didn’t allege that Benson “was a party to or had knowledge of” his exclusion from an absent voter counting board, and she also wrote that Benson had already advised local election officials to admit authorized election challengers.
Also, Stephens said that an affidavit the campaign submitted from a poll watcher — who claimed she was told that a poll worker was ordered to change the dates that ballots were received — amounted to “inadmissible hearsay.”
On the matter of the drop boxes, Stephens wrote that the “plaintiffs have not cited any statutory authority that requires any video to be subject to review by election challengers.” Nor did they present “any statute making the Secretary of State responsible for maintaining a database of such boxes,” or identify “any authority directing the Secretary of State to segregate the ballots that come from such drop-boxes,” she said.
Furthermore, because the campaign’s motion was not filed until the late afternoon on Nov. 4, after vote counting was largely complete, Stephens said “matter is now moot,” making it “impossible” to grant the campaign’s motion.
On Nov. 6, the campaign appealed the ruling to the Michigan Court of Appeals, which said the campaign’s filing was “defective” and required additional documentation. The appellate court gave the campaign 21 days to resubmit.
Donald J. Trump for President Inc. v. Michigan Secretary of State Jocelyn Benson
Outcome: Withdrawn by the Trump campaign
Facts: On Nov. 11, the Trump campaign filed the lawsuit alleging that Benson and election officials in Wayne County, which includes parts of Detroit, “allowed fraud and incompetence to corrupt the conduct of the 2020 general election.”
Lawyers for the campaign argued, among other things, that the campaign’s designated election challengers were not always allowed to meaningfully observe the processing of ballots, that some challengers observed poll workers counting ballots multiple times, and that election challengers witnessed officials changing the received-by dates on ballots that weren’t eligible to be counted.
Thus, the campaign asked the court to “enjoin the Michigan board of state canvassers and the Wayne County canvassing boards from certifying any tally of ballots containing fraudulent or unlawfully cast ballots,” stop the certification of “any tally that includes ballots received after election day and ballots that were processed when statutorily designated challengers were excluded from a meaningful opportunity to observe the processing of ballots,” and exclude or hand-count “ballots that were tabulated with defective or malfunctioning tabulating machines or software … to confirm they are accurately counted and may be included in any certified canvass.”
But on Nov. 19, the Trump campaign voluntarily withdrew the lawsuit, inaccurately claiming, “The Wayne County board of county canvassers met and declined to certify the results of the presidential election.”
The board initially deadlocked in a 2-2 vote, before the two Republican members of the board reversed course and decided to vote in favor of certification. Those same two board members later said they wanted to change their votes, but spokespersons for the Michigan Bureau of Elections and the secretary of state told the Detroit Free Press that there is no legal way for them to do so.
Jill Stokke, et. al., v. Secretary of State Barbara Cegavske and Clark County Registrar of Voters Joseph P. Gloria
Status: Preliminary injunction denied
Facts: A Nov. 5 federal lawsuit announced by the Trump campaign accused Clark County and Nevada of a slew of issues. The lawsuit was actually filed by a group of plaintiffs, including two Congressional candidates, who claimed that “[i]rregularities have plagued the election in Clark County, including lax procedures for authenticating mail ballots and over 3,000 instances of ineligible individuals casting ballots.”
The lawsuit asked for the county to be ordered to stop using its system to count ballots, and for each mail ballot to be checked and verified by staff — as well as to allow “meaningful access to the ballot counting process.”
One of the plaintiffs, voter Jill Stokke, claimed she attempted to vote but was told she had already cast a mail-in ballot; she said she had not. The lawsuit blamed the matter on the machines used in Clark County allowing the “ballot, which she had not signed, to be accepted and counted in the Election.”
The state’s response on behalf of Secretary of State Barbara Cegavske, a Republican, in part countered that Stokke had declined to challenge the previously recorded vote in writing in order to cast a provisional ballot — saying “Ms. Stokke refused because she did not feel she could implicate someone else for a crime.” The state said that the case shouldn’t be grounds to stop the entire county from using its machines to continue the vote counting.
The judge in the case denied the requested preliminary injunction on Nov. 6.
Fred Kraus, Donald J. Trump for President Inc., Nevada Republican Party v. Secretary of State Barbara Cegavske and Clark County Registrar of Voters Joseph P. Gloria
Facts: In late October, the Trump campaign filed a lawsuit seeking to stop Clark County from continuing to count mail-in ballots, arguing they were unable to adequately observe the process.
The lawsuit accused the Registrar of Voters, Joseph P. Gloria, of “obstructing the observation process” and failing to submit a written plan by an April deadline regarding accommodations for the public to observe the ballot processing and counting.
The court denied the campaign’s requested temporary restraining order.
District Judge James E. Wilson Jr. later concluded that the plaintiffs didn’t “have standing to bring these claims.” He also wrote that Clark County Registrar of Voters Joseph Gloria and Secretary of State Barbara Cegasvke had both fulfilled their legal obligations “to allow members of the general public to observe the counting of ballots.”
Wilson’s order noted that the county had submitted a plan to the secretary of state — albeit in October — for the public to observe the process. Wilson said that it was “not substantially different from the plan of any of the other 16 counties,” and not significantly different from years past.
The campaign appealed the decision but then moved to dismiss the case after reportedly reaching a deal to allow more observers at a ballot processing facility. The Nevada Supreme Court formally dismissed the case on Nov. 10.
Jesse Law, et. al. v. Judith Whitmer, et. al.
Facts: With the backing of the Trump campaign, a group of electoral college candidates for Trump filed a lawsuit asking a state judge to declare “President Trump the victor of the Election,” or to prevent the state from choosing electors at all — essentially voiding the state’s presidential election results altogether.
The Nov. 17 lawsuit contends that “substantial irregularities, improprieties and fraud” have made the election results in Nevada unreliable.
Some of the allegations in the complaint are the same as those in the other, aforementioned Nevada lawsuits. In part, the lawsuit alleges faulty machines in Clark County were used to verify the signatures on mail-in ballot envelopes; technical errors occurred during election day; and inconsistent policies were applied by election officials, such as acceptable IDs for same-day voter registration. It also claims the state failed to allow “meaningful observation” of ballot counting.
“The discrepancies and irregularities in this election will eclipse the difference in votes between the candidates,” the lawsuit claims.
Biden leads Trump in the state by 33,596 votes.
Clark County spokesman Dan Kulin said in a statement following the lawsuit’s filing: “Once again, they are repeating allegations the courts have already rejected, misstating and misrepresenting evidence provided in those proceedings, and parroting erroneous allegations made by partisans without first-hand knowledge of the facts.”
Nevada Republican Party, Republican National Committee, Donald J. Trump for President Inc. v. Clark County and Joseph Gloria
Status: Partially successful/pending
Facts: The Trump campaign and Republicans in Nevada filed a lawsuit in October asking a state district court to compel Clark County to provide a slew of election-related records.
Among the sought records: the full names, political affiliations and shift information of voters on the county’s counting board; policies and procedures by the county Election Department regarding the receipt, handling, authentication and tabulation of ballots; and all correspondence with voters regarding the authentication of ballots (among many others).
On Nov. 2, , Clark County District Court Judge Elizabeth Gonzalez ruled that the county would have to provide some, but not all, of the requested records. The order related to documents that existed as of the dates in October when they were requested.
The judge set a Nov. 20 deadline for Joseph Gloria, the county registrar of voters, to turn over records — such as the names, party affiliations and work schedules of more than 300 individuals hired to count ballots.
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Caitlin Quinn and Bala Thenappan contributed to this story.
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