As US President-Elect Joe Biden continues to send out messages that he represents all citizens, there are 70 million Americans – almost half the voters, who voted Republican – who are not celebrating. They are feeling ‘insulted’ by ‘elitist’ media for calling the election for Biden.
Trump’s Denial Of His Defeat
Donald Trump might have been shocked at his victory in 2016, but he had started believing that he will be re-elected in 2020, after a short period of sending contrary messages during the campaign. After (allegedly) ‘beating’ COVID-19, the cheers and support from his base at numerous campaign rallies in the run-up to Election Day, made Trump feel confident of victory. The upbeat mood in the East Room of White House room – that he and his campaign members were watching the vote count from on Election Night – convinced him that his base was going to re-elect him.
All that changed when ‘friendly’ Fox News announced Arizona for Joe Biden. Having come that close, Trump is refusing to accept defeat, till every ‘legal’ vote is counted.
“The simple fact is this election is far from over,” Trump said after Biden was declared President-elect, on Saturday, 7 November. “Joe Biden has not been certified as the winner of any states, let alone any of the highly-contested states headed for mandatory recounts, or states where our campaign has valid and legitimate legal challenges that could determine the ultimate victor,” Trump claimed.
What Tilted US Elections In Biden’s Favour – The Pennsylvania Count
Candidate Trump’s campaign started numerous legal battles, questioning many aspects of the electoral process. Trump’s multi-state legal offensive directed at electoral offices, where vote-counting continued till late, is based on unsupported allegations about fraud and irregularities in the voting and counting process. The Trump campaign has targeted any and every reason they can find to plan legal appeals, and create a doubt about the legitimacy of the electoral process in the public mind. Despite Trump’s accusatory stance, the court challenges are baseless, and unlikely to change the overall results.
It was finally the Pennsylvania count that tilted the election in Biden’s favour, when AP announced it for Biden on Saturday, after days of both candidates being neck-and-neck in the state. Pennsylvania had become a legal battleground.
Not only did Trump campaign advocates request intervention from the United States Supreme Court, they also filed multiple appeals in Pennsylvania courts to help their slim prospects. A large part of the ballots that were being counted towards the end in some of these states include mail-in ballots – which trends show to be cast more by Democratic voters.
The number of votes cast by mail in the 2020 US presidential election is unprecedented.
This is the area that the Trump campaign legal team aimed to target for their appeals, along with the fact that Trump made a distinction between ‘legal’ and ‘illegal’ votes, calling the votes that were being counted after Election Day as ‘late votes’, alluding them to be not legit. The fact remains that these mail-in ballots were actually cast earlier than the in-person votes cast on Election Day.
Pennsylvania Mail-In Ballots Received After Election Day: Focus Of Trump’s Case
A Trump campaign lawsuit in Pennsylvania focused on mail-in ballots that were post-marked on Election Day but scheduled to arrive three days after 3 November. The Pennsylvania Supreme Court had extended the time in which a mail-in ballot could be received until after Election Day. Team Trump was able to have these ballots separated, making them possibly contentious at the time. The decision of Pennsylvania courts will decide whether these ballots will have to be thrown out or included in the count.
This is the issue that the Trump legal team plans to focus on, and possibly take it to the Supreme Court.
The Trump Campaign lawyers and other Republicans filed other law suits in Pennsylvania, some of which went their way, and some were thrown out because they were ‘based on hearsay’, which is not considered as evidence in courts.
Team Trump’s Attempts To Slow Down & Stop Counting
An appeals court in Pennsylvania on Thursday ordered that Trump campaign officials be allowed to ‘more closely observe’ ballot counting in Philadelphia, which led to a brief delay in the count. According to Pittsburg Action News, Duquesne University law professor, Bruce Ledewitz, said, “They are pushing forward, I think, in an attempt to slow down or stop the counting because it really wouldn't have much impact. All they are asking is to be given closer than 25 feet access and they want to look at the votes.”
Attempts To Stop Counting of Provisional Ballots
According to the Pittsburg Post-Gazette, a case was filed to stop counties from counting provisional ballots cast by voters whose mail-in ballots were disqualified. State election officials told counties that voters whose mail-in or absentee ballots were rejected could still vote in person with a provisional ballot, according to the suit.
The Republicans argued that this went against a state Supreme Court ruling in October that state law offered no way for voters to rectify a disqualified vote.
Challenging Last Minute Changes to Deadlines
The other challenge by the Trump campaign in Pennsylvania, described last-minute changes to deadlines for first-time voters to provide identification if they were using absentee and mail-in ballots.
What is the gamut of legal offence that his team of lawyers unleashed, and what was the legal basis for these battles?
We can understand this from the cases they have filed in battle ground states. Most of these lawsuits, have not held up in courts for lack of evidence.
Contesting ‘Irregularities’ Sans Evidence – Trump’s Strategy
Trump allies alleged that there had been ‘voting irregularities’ in Nevada’s populous Clark County, which includes Las Vegas. According to Reno Gazette Journal, at a news conference, former Nevada Attorney General and Co-Chair of the Trump Campaign in the state, Adam Laxalt, gave no evidence to support their allegations of irregularities while saying, “We believe that there are dead voters that have been counted. We are also confident that there are thousands of people whose votes have been counted that have moved out of Clark County during the pandemic”.
He said a lawsuit would be filed in federal court to ask the judge to “stop the counting of improper votes.” Joe Gloria, an election official in Clark County clarified that there was no evidence of improper ballots being processed.
Questioning Absentee Ballots Sent to All Voters
In Nevada, another lawsuit objected to the state’s decision earlier this year to send absentee ballots to all active voters.
States have different rules about mail-in ballots. Some need voters to make requests for ballots to be mailed to them, and some send it to all voters, irrespective of whether they plan to return these envelopes by mail or vote in-person.
‘Legality’ Of COVID Safety Measures
Due to the pandemic, states and governors adjusted to make voting safer for citizens, introducing flexibility like drive-in vote envelope drop-offs, sending ballots to all voters by mail, having mobile vote stations, extending the limit after the Election Day by which a ballot can be received to be included in the final count, as long as it was post marked till the election day, etc.
The Trump campaign has questioned the legitimacy of some of this flexibility and the authority of Governors to make these changes from years past.
Trump’s Request For A Statewide Recount
In Wisconsin, the Trump campaign said it would request a recount there alleging with little evidence, irregularities in the vote. A recount can’t begin until the state officially certifies the results, which are due by 1 December.
Milwaukee Journal said that if Trump remains behind by less than one percentage point when the official tally is completed, he can force a recount. If the margin is larger than that, there's no chance for one.
Before any decision could be made on a recount, the official tally needs to be finalised over the coming weeks.
It’s important to note that the recount in 2016, requested by a Green Party candidate, resulted in hardly any changes to the final tally in Wisconsin. Trump had won the state by fewer than 23,000 votes.
Late Arrival Ballots
A Georgia judge quickly dismissed a Trump campaign appeal on Thursday that alleged 53 mail-in ballots received after a 7 PM on Election Day deadline, were mixed in with legitimate ballots.
As per Atlanta News Now, Judge James F Bass wrote: “The court finds that there is no evidence that the ballots referenced in the petition were received after 7 PM on Election Day, thereby making those ballots invalid.”
As far as recounting law in Georgia is concerned, it allows a candidate to request a recount if the difference between the top two vote-getters is a half of a percent or less of the total vote.
Georgia Secretary of State Brad Raffensperger, a Republican, said the state would have a recount due to the slim election margin.
Team Trump’s Demand For ‘Greater Access To Tabulation’
In Michigan, Trump’s legal team had sought to stop votes from being counted and obtain greater access to the tabulation process. A Michigan judge said: “I have no basis to find that there is a substantial likelihood of success on the merits,” while tossing the lawsuit.
The Detroit News reported that Michigan Court of Claims Judge, Cynthia Stephens, also questioned an affidavit claiming that Detroit poll workers were ‘told to change dates’ on late absentee ballots: “What I have at best is a hearsay affidavit, I believe, that addresses a harm that would be significant, but that’s what we got. We’ve got an affidavit that is not firsthand knowledge.”
A ‘Contentious’ Grace Period
Another factor that Trump’s team found contentious is the grace period that many states give to receive votes posted before Election Day. North Carolina will accepts mail ballots that arrive by 12 November, so long as they were postmarked by Election Day, a policy recently allowed by the Supreme Court.
Many other states have generous mail ballot deadlines, as long as they were posted before election day.
Trump’s Threats To Approach US Supreme Court
Trump spoke from the White House on Election Night threatening to approach the US Supreme Court, alluding to the vote counting process being fraudulent. He tweeted - ‘stop vote count’.
Trump made the statement, ‘Frankly, we did win this election’, in spite of knowing that votes were still being counted in battleground states (at the time of writing this article). What is the legal basis for his comment about approaching the US Supreme Court, to stop the counting of votes?
Cyrus Mehta, a New York based advocate told us, ”There is no legal basis to approach the Supreme Court of US. The votes are still being counted. The counting has not stopped.”
Legally, Trump cannot approach the US Supreme Court before contesting these counts in local state courts, which might be state Supreme Courts.
Cyrus Mehta gives the recent example from Harris County, Texas where Republicans appealed to a local court to block in advance, drive-through voting on Election Day. The local court over ruled it and drive-through voting was allowed to proceed.
Various other futile scenarios could have been used to file suits, including whether the last person in a queue was allowed to vote right as polls were closing; a counting official’s acceptance of the intention of a voter by accepting a checkmark instead of a circle mark on the ballot; post offices being requested to sweep their premises for any undelivered ballots post marked before Election Day, etc.
Team Trump’s Multi-State Litigation
The lawsuits in multiple states highlighted that the Trump campaign might have had to persuade courts in two or more states to set aside enough votes to overturn the results. That’s a substantially different scenario in the contested Bush-Al Gore Presidential Election of 2000.
That election was eventually settled by the Supreme Court, when the entire fight was over Florida’s electoral votes and involved a recount as opposed to trying to halt counting. A recount brings with it a sleuth of lawsuits and counter law suits. The 2000 Florida recount also showed that recounts can also be like opening a huge can of other worms.
Trump’s litigation does not have strong legal merits. The Biden campaign finds this to be part of a broader misinformation campaign.
But Donald Trump is a fighter, well known for legal battles over golf courses, taxes, Trump University, etc. A 2016 USA Today analysis found that Trump and his businesses were involved in at least 3500 legal actions in federal and state courts over three decades. They range from tussles with casino customers, million-dollar real estate suits, and personal defamation cases. The sheer volume of lawsuits was unprecedented for a presidential candidate. It also mentioned that Trump responds to even small disputes with overwhelming legal force.
Trump’s Legal Strategy Against Biden’s Win Is Unlikely To Shake Things Up
One of Trump’s tweet after Election Night read, “All of the recent Biden claimed States will be legally challenged by us for Voter Fraud and State Election Fraud. Plenty of proof - just check out the Media. WE WILL WIN! America First!”
Speaking about the ineffective flurry of the Trump Campaign’s legal activity in Pennsylvania since Election Day, Attorney General Shapiro told NPR that, “A lot has happened, but very little actually happened.”
Trump’s legal strategy is unlikely to have a an impact now.
Trump has repeatedly said that he expects the US Supreme Court, which has a 6-3 conservative majority including three justices he appointed, to have a key role. It is unlikely the court would have the final word in any decisive way.
In the meantime, Americans are celebrating the Biden-Harris victory in streets across the US. World leaders, including Indian PM Narendra Modi, have congratulated Biden and Harris on their victory.
Citizens are wondering whether Trump will make a concession speech, an American tradition, which is a norm, not a rule. But Donald Trump isn’t known to follow norms.
(Savita Patel is a senior journalist and producer, who produced ‘Worldview India’, a weekly international affairs show, and produced ‘Across Seven Seas’, a diaspora show, both with World Report, aired on DD. She has also covered stories for Voice of America TV from California. She’s currently based in the San Francisco Bay Area. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)