Faced with a growing list of legal setbacks and defeats, President Donald Trump tweeted Sunday that his team would file a new wave of “big cases” showing the “unconstitutionality” of the 2020 election.
None of the cases his campaign has filed so far assert widespread election fraud or involve enough ballots to overturn the results, and many have already failed. The Department of Homeland Security issued a joint statement Nov. 11 calling the election “the most secure in history.”
The Trump legal offensive follows many election rule changes that state officials said were necessary to ensuring access to voting during the pandemic, but which the president claims compromised election integrity amid a record spike in mail-in voting. Courts have found at least 150 incidents of absentee ballot fraud in recent decades, but most cases have been small scale and at the local level.
Still, President Trump’s unsubstantiated claims that Joe Biden won due to “fraud” could serve his interests – either as a future candidate or kingmaker – if enough GOP voters are convinced he didn’t really lose.
“That gives him a relevance that a Jimmy Carter or George H.W. Bush didn’t possess,” says Henry Olsen of the conservative Ethics and Public Policy Center in Washington.
So far, the Trump lawsuits have mainly involved small-scale claims that would not change the current Electoral College projection of a 306-232 win for Joe Biden. At least a dozen of those cases have already proved unsuccessful. None of them assert widespread election fraud, and lawyers representing the Trump campaign in Arizona and Pennsylvania testified that they were unaware of any such mass fraud in those states. In addition, the Trump campaign scaled back one of its key cases, in Pennsylvania, over the weekend.
At issue, however, is not only what happens in the courtroom – but also in the court of public opinion. In an increasingly polarized environment in which President Trump wields a digital bully pulpit with nearly 90 million Twitter followers, legal verdicts alone may not settle the question in the minds of his supporters. Even if the Trump campaign’s lawsuits fail, his unsubstantiated allegations that Mr. Biden won only because of “fraud” could serve his political interests – either as a future candidate or kingmaker, with an unparalleled ability to rile up the GOP base.
“If what he has done is convince Republican voters and activists that ‘I didn’t really lose,’ that gives him a relevance that Jimmy Carter or George H.W. Bush didn’t possess,” says Henry Olsen, a senior fellow at the conservative Ethics and Public Policy Center in Washington.
On Nov. 11, the president’s own Department of Homeland Security issued a joint statement by members of two key election infrastructure entities calling the 2020 election “the most secure in history.” State election officials from both parties have widely disavowed that there was any noticeable widespread fraud.
But a Politico/Morning Consult poll conducted Nov. 6-9 found that 70% of Republicans didn’t believe that the election was free and fair. When asked why, 84% of them agreed with the statement that “mail-in voting led to widespread voter fraud” and 76% said they thought ballots had been tampered with, according to a detailed breakdown.
Concerns around absentee ballots
The president began raising concerns about the integrity of the election well before Nov. 3, after many states instituted rule changes that officials said were necessary to ensuring access to voting during the pandemic, including a massive expansion of mail-in voting.
Some conservatives have questioned various modifications and exemptions that removed some measures designed to prevent abuse of absentee ballots. These included waiving eligibility standards for absentee voting, suspending notarization requirements, reducing witness signature requirements, extending deadlines for voter registration, and – in California’s case – automatically mailing ballots to registered voters without them requesting one and verifying their current address.
Voting rights advocates cite studies showing that cases of proven electoral fraud are extremely low, though absentee ballot fraud is the most common type and the most difficult to detect “since the misuse of a voter’s ballot or the pressure on voters occurs away from the polling place or any other outside scrutiny,” according to a 2001 bipartisan commission on federal election reform featuring former presidents Gerald Ford and Jimmy Carter as honorary co-chairs.
A compilation by a conservative think tank of some 150 criminal convictions for absentee ballot fraud over the past few decades shows that most cases have been small scale and at the local level – where relatively limited fraud can prove decisive.
In 2009, Wisconsin residents Louis and Jane Kwiatkowski voted not only in their hometown but also by absentee ballot in the village where they owned a cabin, helping their preferred candidate win the trustee’s race by a two-vote margin. Angel Perales, a local official in Cudahy, California, admitted to opening mailed ballots in 2007 and 2009 elections to see for whom the ballots had been cast, resealing and submitting those for incumbent candidates and tossing the rest. And in 2016, Brandon Dean, who was elected mayor of Brighton, Alabama, at age 24, was forced to vacate his office less than a year later after a judge ruled that 46 fraudulent absentee ballots – including 22 sent to Mr. Dean’s home address – had been crucial to his victory.
Rarer are known cases of absentee ballot fraud involving state races. In a highly scrutinized 1993 Philadelphia special election for state senate, a federal judge found evidence of “massive absentee ballot fraud” and ousted the Democratic victor after he had already taken his seat, flipping control of the legislative body to the GOP.
Hans von Spakovsky, the manager of the Election Law Reform Initiative at the conservative Heritage Foundation, started the database from which the examples of absentee ballot fraud cited above were drawn. But he says the 1,400 incidents of all different types of voter fraud in his database are just the tip of the iceberg – and anyone who disputes that must believe that the only drug dealers in the country are those who have been convicted.
Even in cases where it can be proved that the number of fraudulent ballots exceeded the margin of victory, that doesn’t guarantee the results will be overturned. In a case involving Washington’s 2004 gubernatorial race, a judge determined that 1,678 ballots were invalid in a race in which the margin of victory after a hand recount was just 129. But the Republican plaintiffs still lost because it couldn’t be determined whether the bad ballots – involving felons, dead people, and provisional vote – had been critical to the winner’s victory.
Supporters of President Donald Trump hold signs during a rally outside the Georgia State Capitol, Nov. 13, 2020, in Atlanta.
“Zero” Trump lawsuits will stand up
Barry Richard, a Democratic lawyer who led George W. Bush’s victorious legal team in the 2000 Florida election litigation, says in an interview that there are “zero” Trump lawsuits that have a decent chance of standing up in court. Many prominent Republican experts agree.
But top GOP lawmakers, including Senate Majority Leader Mitch McConnell, say the president is well within his rights to pursue the legal route, and that allowing the courts to examine such claims and concerns will build public trust in the election’s credibility. Many Democrats counter that it’s allowing Mr. Trump to stoke unfounded suspicions among his base, in ways that will likely undermine Mr. Biden’s presidency.
Among the evidence presented in the Trump lawsuits are various affidavits, mainly from poll observers. One comes from a woman identified as an employee “for decades” for the city of Detroit who was assigned to help with the 2020 elections, Jessy Jacobs. In an affidavit which featured prominently in a Nov. 9 Trump campaign press conference, Ms. Jacobs claims, among other things, that she was asked to predate absentee ballots that arrived after the Nov. 3 deadline and to alter the qualified voter file to falsely show that the ballots had been received in time to be valid. Michigan Secretary of State Jocelyn Benson had addressed the backdating claim in a previous statement, saying that it was done to remedy a clerical error, and that Republican poll challengers had declined to challenge that method of resolution.
The Pennsylvania case that legal experts say does involve a legitimate constitutional question – whether the constitutionally mandated authority of state legislatures to determine how elections are conducted was circumvented by other state and local officials, including the state Supreme Court’s decision to allow a three-day extension for receipt of mailed ballots – now appears unlikely to move forward. That’s because only some 10,000 votes were reportedly received during the extension period, far less than Mr. Biden’s current lead in Pennsylvania of more than 65,000 votes.
In recent days, Mr. Trump has targeted his fire at Dominion Voting Systems, which he alleges deleted millions of votes and “switched” hundreds of thousands of votes from him to Mr. Biden. Dominion has denied such claims, pointing to the DHS statement’s conclusion: “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” The statement does not specify what steps were taken to examine concerns about the security and reliability of Dominion’s voting machines.
State election officials using the machines, including in Michigan’s Antrim County, have explained initial misreporting of some results as due to human error rather than software problems. Moreover, an audit in Arizona’s Maricopa County, which also uses the machines, did not find any discrepancies.
Democrats and even some Republicans who are otherwise sympathetic to Mr. Trump have denounced his claims about Dominion as conspiracy theories, though Democratic senators including Elizabeth Warren and Amy Klobuchar did raise concerns about the security of such voting machines with the backers of the three major vendors, including Dominion, in December 2019.
Compromise of 1877
In 1876, Democrat Samuel Tilden won the popular vote and was leading in the Electoral College but Republicans cried foul. Among the concerns were stuffing of ballot boxes, attempts to trick illiterate voters by stamping Democratic ballots with Republican Abe Lincoln’s face on them, and various voter suppression tactics targeting Black citizens in the South, who at the time tended to favor the Republican Party. The electoral votes of three Southern states plus Oregon were disputed, throwing the country into a constitutional crisis. Congress appointed a bipartisan commission with members of the House, Senate, and Supreme Court, which decided in favor of Republican Rutherford Hayes by one electoral vote.
The Trump team has reportedly considered a similar scenario, in which they would try to convince GOP legislatures to send a rival slate of electors in key battleground states. Under the 12th
Amendment, this would force the incoming Congress to settle the dispute – first through the Senate, presided over by Vice President Mike Pence, or if the body could not agree that either candidate received the minimum 271 electoral votes, the House would vote directly, with each state delegation receiving one vote. The GOP would likely have the upper hand in either scenario, since it appears on track to control at least 26 delegations in the House and maintain its majority in the Senate, unless the Georgia runoffs change that. Key to this scenario would be states missing the Dec. 8 “Safe Harbor” deadline to choose electors, which may have been a goal of his campaign’s litigation.
“There’s a whole series of ifs and presumptions … but I can see Trump and his inner circle believing that is possible – that the entire Republican apparatus would fall in line and do a partisan-motivated appointment and confirmation of a rival slate of electors,” says Mr. Olsen.
But Edward Foley, a constitutional law professor at Ohio State University who laid out such a disputed election scenario in a 2019 Loyola University Chicago Law Journal article, says he no longer thinks it’s likely. “I don’t believe Biden’s inauguration is in any jeopardy,” he says.
Maggie MacAlpine, an election security specialist and co-founder of Nordic Innovation Labs in Portsmouth, New Hampshire, has also spent time over the past year gaming out nightmare scenarios. In a virtual tabletop exercise run by Boston-based firm Cybereason in August, one of the last prompts in the simulated election crisis told participants that 30% of conservative Twitter was saying the results weren’t valid. Now, in real life, it’s 70% of Republicans.
One way she says voter confidence could be improved is by implementing a type of postelection audit that is relatively inexpensive and efficient. Known as a risk-limiting audit, it involves checking a portion of ballots to ensure that the vote tally is correct, using statistical methods to reduce the risk that an incorrect result will be certified. The wider the margin, the smaller the portion of ballots that needs to be checked. Thirty-four states as well as the District of Columbia currently use RLAs, which can be carried out as a matter of routine, rather than as a result of anyone casting suspicion on the process.
“If we make this just a sanitation part of the election, a lot of this doubt can go away,” says Ms. MacAlpine.
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