Judges are tossing out President Trump's last-minute attempts to sue his way to victory one by one

"Each has been rejected so far, and I'd rather not give them oxygen," election law expert Jon Sherman tells Salon

By Roger Sollenberger
November 6, 2020 4:36AM (UTC)
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U.S. President Donald Trump speaks on election night in the East Room of the White House in the early morning hours of November 04, 2020 in Washington, DC. Trump spoke shortly after 2am with the presidential race against Democratic presidential nominee Joe Biden still too close to call. (Chip Somodevilla/Getty Images)

Federal judges have already begun to toss last-minute lawsuits brought by President Donald Trump's campaign, which has turned to attempting to litigate a victory as its electoral hopes dwindle.

The campaign, which has falsely alleged that Democrats are trying to "steal" the election by counting all the votes cast, has so far filed lawsuits in three states: Georgia, Michigan, and Pennsylvania. Within hours, judges had thrown out the suits in Georgia and Michigan. The Supreme Court has already declined once to rule on the Pennsylvania case.

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On Thursday, the campaign announced its intent to file a fourth suit in Nevada. It has also vowed to request a recount in Wisconsin, where Democratic nominee Joe Biden has what appears to be an unassailable 20,000-vote lead.

Election law experts called the suits frivolous and unlikely to make a difference.

"They're totally small potatoes," Jon Sherman, senior counsel at the Fair Elections Center, told Salon. "Each has been rejected so far, and honestly, I'd rather not give them any oxygen."

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"None of Trump's small bore lawsuits have been able to stop the count, and of course, there is no basis to do so," Rick Hasen, election law expert at University of California, Irvine, wrote on his Election Law blog, adding that the suits' minor claims are only "tinkering on the edges."

In Georgia, Chatham County Superior Court Judge James Bass tossed a case in which Trump campaign poll observers claimed that 53 absentee ballots had been unlawfully commingled with ballots cast on Election Day. Elections officials in the coastal county, which contains the city of Savannah and skews heavily Democratic, testified that all 53 ballots had arrived on time. The judge heard the case for an hour before ruling against the campaign without providing an explanation.

But where Hasen argues that outside of Pennsylvania, Trump's strategy "is not created to lead to a difference in results," Sherman pointed out that Georgia promised to be a nail-biter.

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"That state could in fairness be decided by a 53-vote margin," he said.

In Nevada, which like Georgia has not yet been called, the campaign hopes to challenge thousands of ballots, alleging that the rise of mail-in ballots this year resulted in votes from people who are dead or otherwise do not meet state residency requirements.

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At a publicity event put on by Nevada Republicans, state resident Jill Stokke claimed that when she tried to vote, polling place officials told her that she had already cast her ballot.

"In years past, I always voted in person," Stokke said. "This time, they mailed out the ballots, and somebody took my ballot. They also took the ballot of my roommate."

Stokke added that she had pursued the matter, but she did not say what came of it.

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Lawsuits in Michigan and Pennsylvania called for the temporary halt in vote counting until campaign poll observers were granted more access in a number of locations.

Michigan Court of Appeals Judge Cynthia Stevens ruled against the Trump campaign on Thursday, saying that the state could not accommodate the remedy requested by the campaign, because the counting process was almost complete.

Stevens also dismissed allegations of ballot tampering as "hearsay," adding that campaign lawyers had failed to sustain their complaints about restricted access to observation.

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While the campaign won its request to grant observers closer access to ballot counters in Pennsylvania, that suit did not challenge the validity of the count.

Though Pennsylvania still remains too close to call, Biden continues to eat into Trump's lead as mail ballot continues. However, the campaign has sought to sign onto a lawsuit brought by the state's Republican Party, which seeks to intervene in a state Supreme Court ruling handed down before the election.

That court order validated mail ballots received by Friday, so long as they had been postmarked by Election Day. The U.S. Supreme Court let that order stand in a decision ahead of the election, but in anticipation of a renewed court challenge, state election officials segregated their 3.1 million mail ballots between those received before and after the election.

"I'm not sure that the Trump campaign can even get into the case. Not sure that's procedurally proper," Sherman said. "But, regardless, on the merits, it's absolutely nothing new."

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"And my earlier view still stands: It would violate the due process rights of voters," he said, referencing a pre-election analysis he gave to Salon.

Trump tweeted Thursday that, "ANY VOTE THAT CAME IN AFTER ELECTION DAY WILL NOT BE COUNTED!" Twitter immediately flagged the post as misinformation, the seventh time it had done so since Election Day. 

The president also tweeted, "STOP THE COUNT!". Doing so would hand the presidency to Biden, who currently has the lead in Nevada, the only state he needs to hit 270 electoral votes, according to the Associated Press.


Roger Sollenberger

Roger Sollenberger is a staff writer at Salon. Follow him on Twitter @SollenbergerRC.

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