Trump sues New Mexico in continued election challenge as Electoral College affirms Joe Biden's win

Trump expands his failed election challenge to a state he lost by 10 points

By Igor Derysh

Managing Editor

Published December 15, 2020 11:24AM (EST)

President Donald Trump (Doug Mills-Pool/Getty Images)
President Donald Trump (Doug Mills-Pool/Getty Images)

As the 538 electors who make up the Electoral College met on Monday in all 50 state capitals and the District of Columbia to cast their constitutionally mandated votes for president, Donald Trump expanded his failed legal effort to overturn the 2020 election based on fictitious claims of fraud. The Trump campaign filed a federal lawsuit in New Mexico, a state he lost by more than 10 percentage points, alleging that Secretary of State Maggie Toulouse Oliver violated state law by allowing voters to submit ballots using drop boxes at polling places in lieu of presenting them in-person to a judge.

"[I]t's not over. We keep going and we're going to continue to go forward. We have numerous local cases," Trump told Fox News' Brian Kilmeade before his campaign filed its latest lawsuit. 

The Trump campaign, which has lost in court more than 30 times since the election after failing to show any evidence of widespread fraud or irregularities, largely recycles arguments from another failed Republican lawsuit in November. The New Mexico GOP sued over the state's use of drop boxes, which were installed to reduce crowding and allow for social distancing amid the coronavirus pandemic. Republicans wanted video cameras to monitor the boxes but a judge ultimately dismissed the case after the secretary of state agreed to remind county election officials of guidelines requiring the drop boxes to be secured.

Trump's new lawsuit asks the court to delay the certification of New Mexico's electoral votes, which were officially cast to Biden on Monday, and order a statewide canvass of all absentee ballots. The lawsuit also asks the court to segregate absentee ballots submitted through drop boxes and contact those voters to ensure no unauthorized ballots were cast.

The campaign filed a similar lawsuit in Pennsylvania that was rejected in October by a Trump-appointed judge, who said the complaint failed to show evidence of fraud and that it was not the job of the judges to "contradict the reasoned judgment of democratically elected officials."

"This lawsuit appears to be yet another attempt by the outgoing Trump Administration to silence the voices of lawful voters throughout the country," Alex Curtas, a spokesman for Toulouse Oliver, told the Las Cruces Sun News. "The state GOP acknowledged that drop boxes are legal under New Mexico law… Now, on the same day that New Mexico's electoral votes were cast for Joe Biden and Kamala Harris, Donald Trump is making a desperate attempt to undermine our lawful election in New Mexico predicated on a misunderstanding of election laws."

Trump lost the state by over 100,000 votes, and its five electoral votes would not get him much closer to reversing an election he lost by 74 electoral votes.

Trump's campaign suffered another defeat in Wisconsin on Monday as the state Supreme Court rejected its lawsuit seeking to throw out hundreds of thousands of absentee ballots in two counties with large Black populations.

"Our laws allow the challenge flag to be thrown regarding various aspects of election administration," conservative Justice Brian Hagedorn, who joined the court's three liberals, said in his opinion. "The challenges raised by the Campaign in this case, however, come long after the last play or even the last game; the Campaign is challenging the rulebook adopted before the season began."

"Wisconsin voters complied with the election rulebook," added liberal Justices Rebecca Dallet and Jill Karofsky. "No penalties were committed and the final score was the result of a free and fair election."

Many of Trump's and his allies' lawsuits have targeted areas with large Black populations. "This lawsuit, Mr. Troupis, smacks of racism," Karosfky told Trump campaign lawyer Jim Troupis on Sunday, arguing that the campaign targeted Milwaukee and Dane counties "because of their diverse populations, because they're urban." The Trump campaign's lawsuits have also singled out counties with large Black populations in Pennsylvania, Michigan, and Georgia.

"It is difficult for me to think of another president in modern time who has literally driven a national scheme to disenfranchise Black voters and other voters of color en masse, in the way that we see with these post-election lawsuits," Kristen Clarke, the head of the Lawyers' Committee for Civil Rights Under Law, told NPR.

But while Trump's campaign has sought to throw out millions of legal votes and subvert the election, his legal team, led by Rudy Giuliani, has failed to convince even Trump-appointed judges of any of the president's baseless claims. At least 86 judges, including 38 who were appointed by Trump or other Republicans, have rejected at least one case brought by Trump or his GOP allies.

Fox News host Brian Kilmeade on Monday pointed out that Trump's legal team and his allies have lost "50 times" in "almost every state."

"So do you have the worst legal team who just don't seem to be presenting a good case?" he asked White House adviser Stephen Miller. Claiming that "judges are caving" to the "corrupt corporate media" by outright rejecting Trump's complaints, Miller bragged that Trump allies would present an "alternate slate of electors" in states where he challenged the rules even though these won't be certified by secretaries of state, making them moot.

"They don't have legal authority and so this does not affect the counting of Electoral College votes," explained Rick Hasen, an election law expert at the University of California Irvine School of Law.

Rep. Mo Brooks, R-Ala., has also vowed to challenge some states' electoral results. Brooks would need a senator to sign on for a challenge, which is expected to quickly be defeated.

Despite the futility of the effort, however, Hasen said it was important not to lose sight of what Republicans were trying to do. "All of this fantasy talk about… accepting these fake electors not appointed by the state should be understood for what they are: an attempt to steal the election from the victor," he tweeted. "That's not hyperbole. That's literally what it is."

For his part, Joe Biden on Monday said "now it is time to turn the page" and "unite" and "heal" after the Electoral College vote. "In this battle for the soul of America, democracy prevailed," the president-elect said. "We the people voted. Faith in our institutions held. The integrity of our elections remains intact."

But even as some Republican leaders and even Russian President Vladimir Putin finally congratulated Biden on an election he won six weeks ago, many twisted themselves in knots to avoid acknowledging Biden's victory.

"I suppose you can say official, if there is such a thing as official president-elect, or anything-else-elect," Sen. Kevin Cramer, R-N.D., told reporters before alluding to Trump's lawsuits and a completely unrelated Justice Department investigation into Hunter Biden. "There's an inauguration that will swear somebody in, and that person will be the president of the United States, but whether you call it that or not, you know, there are legal challenges that are ongoing — not very many — probably not a remedy that would change the outcome."

Judiciary Committee Chairman Sen. Lindsey Graham, R-S.C., claimed that Trump still had a chance despite failing to show any evidence of fraud that would affect the result and mounting legal losses. "It's a very, very narrow path for the president," Graham said Monday. "But having said that, I think we'll let those legal challenges play out."

Rep. Paul Mitchell of Michigan announced that he would quit the Republican Party on Monday for backing Trump's attempt to "treat our election system as though we are a third-world nation and incite distrust of something so basic as the sanctity of our vote."

Mitchell, who is retiring at the end of this term, warned that members of Congress "take an oath to 'support and defend the Constitution of the United States,' not to preserve and protect the political interests of any individual, be it the president or anyone else, to the detriment of our cherished nation."

"This party has to stand up for democracy first — for our Constitution first — and not political considerations," he later told CNN. "Not to protect a candidate. Not simply for raw political power, and that's what I feel is going on and I've had enough."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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