The legal barrage by President Donald Trump’s campaign against election results in battleground states is highly unlikely to succeed. But it still has the potential to test American democracy as Trump tries to cling to power despite losing the election.
Lawsuits filed in Pennsylvania, Michigan and Arizona — all states that voted for Democratic candidate Joe Biden — ask judges to prevent those states from certifying their results. That has raised questions about whether the Trump campaign is trying to subvert the popular votes in those states.
Even if that were the goal — and some legal experts and observers question whether it is — everyone who spoke with USA TODAY said it would almost certainly fail.
The Trump campaign would have to convince judges there were serious, widespread problems with voting. So far that hasn’t happened.
There would have to be evidence showing enough votes are in question to turn those states to Trump. But Biden’s lead in key states far surpasses the number of votes that have been called into question.
And state lawmakers would have to decide to act to override the popular votes. That’s unlikely and, some say, possibly illegal.
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But these are unusual times.
The harm in letting these lawsuits play out is that “it’s not impossible that they will succeed,” said Chris Edelson, a government professor at American University, lawyer and fellow at the Center for Congressional and Presidential Studies.
“I just think everybody is freaking out because the Constitution and federal statutes have all these bizarre provisions” dealing with disputes over electoral votes, said Rick Hasen, an election law expert from the University of California-Irvine.
If judges allow Republican legislatures to overturn a vote of the people, Hasen said, “it would provoke massive social unrest. … I think it would be the end of American democracy as we know it.”
Michigan preps for ‘every set of circumstances’ amid election fight
Michigan Attorney General Dana Nessel told USA TODAY that state authorities are preparing for such a worst-case scenario: A bid to push the Republican-controlled state legislature to appoint a slate of Trump electors to the Electoral College.
Nessel, however, said she did not know whether the Trump campaign would pursue such a strategy. She said such an effort would threaten “a loss of democracy.”
“We are preparing for every set of circumstances that could be imagined,” Nessel, a Democrat, said. “We absolutely intend to vigorously fight against that type of scenario.”
A federal lawsuit filed this week in Michigan asks a judge to block the state board of canvassers and Wayne County’s canvassing board from certifying election results if they contain fraudulent or illegally cast ballots. The suit alleges election officials backdated some ballots that were received late and excluded challengers from a “meaningful opportunity” to observe ballot processing.
The lawsuit includes affidavits from more than 100 people claiming a range of irregularities, from the improper tabulation of votes to denying observers access to counting. The claims, however, do not include evidence of widespread fraud, state officials said.
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Biden has a 146,000-vote lead in Michigan. The state canvassing board, two Democrats and two Republicans, is set to weigh certification Nov. 23.
That deadline is important.
In each state, a governmental body or official certifies the election results, essentially declaring the winner. It’s first done at the county level, then the state. The certification is used to determine which slate of electors — one for Biden, the other for Trump — will cast the state’s Electoral College votes.
A delay in the certification could jeopardize the state’s ability to have its electoral votes submitted to Congress by what’s known as the Safe Harbor deadline on Dec. 8. If states meet that deadline, Congress has said it must accept the states’ electoral votes.
“If you could just get it (certification) blocked long enough, you could claim there is no popular vote in the state that is official,” said Edward “Ned” Foley, an Ohio State University law professor and director of the school’s election law program.
Trevor Potter, president of the Campaign Legal Center, said the lawsuits show “a strategy born of desperation.”
“I think the Trump people are looking at this and saying, we’re not going to win the recounts, we’re not going to win the popular vote in these states,” said Potter, a Republican, former chairman of the Federal Election Commission and former general counsel to John McCain’s presidential campaigns.
Given that, he said, Trump allies are thinking, “the only thing we can do is cast enough doubt on the election in a couple of big states to try to undermine the legitimacy of the results in those states and somehow prevent certification of those results.”
Donald Trump is a ‘drowning man grasping for anything’ in Michigan
The strategy, aides and allies of the president told USA TODAY, appears to be based in politics as much as the law. Trump has openly discussed running again in 2024, a tacit acknowledgement that a second term may not be in his grasp, said one Republican speaking on the condition of anonymity to discuss internal matters.
In other words, Trump wants to go down fighting.
The president’s fervent hope is that a court or a state government will somehow overturn results favoring Biden in states like Pennsylvania, Georgia, Nevada, and Arizona — a result few people, if any, near Trump expect to happen.
A Michigan Republican Party official speaking on the condition of anonymity described the president’s legal strategy there as a “drowning man grasping for anything” he could use to reverse the results.
That doesn’t mean Republicans don’t share concerns about how mail-in ballots are handled in the state, the person said, but those concerns are more about the overall process.
In Pennsylvania, Biden is leading by more than 54,000 votes. In Michigan, his lead is 146,000 votes.
In Pennsylvania, Gov. Tom Wolf has the power to certify election results
The federal lawsuit that Trump’s campaign filed on Monday against Pennsylvania’s Secretary of the Commonwealth and some election officials accuses them of running an unconstitutional, two-track voting system. One track, for in-person voters, featured fixed deadlines and careful oversight of voters. The other, for mail and absentee voters, had lax security and deadlines that were illegally extended beyond state election code requirements, the lawsuit alleges.
The court complaint asks a judge to prevent certification of the general election results, or at least block certification that includes any ballots that do not comply with state election law.
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Matt Morgan, the general counsel for Trump’s campaign, told reporters Thursday the effort to delay certification in Pennsylvania is aimed at preserving the campaign’s shot at getting a recount.
He said the pause is needed to “get a handle on where our actual vote tallies are” to see if it falls within the 0.5% margin for an automatic recount. Biden leads Trump by 0.8% in Pennsylvania; bringing it under the threshold for a recount would require invalidating more than 20,000 votes.
The Trump campaign on Thursday filed a motion for an injunction ordering a “brief pause” in the certification process so it could to confirm a “well-founded theory that Pennsylvania election officials counted tens of thousands of invalid votes.” Attorneys for the Secretary of State filed a motion to dismiss the case, arguing that many of the Trump campaign claims amount to “minor perceived election code violations.”
Separately, the Trump campaign filed another five lawsuits in Pennsylvania state court Wednesday seeking to get 8,329 mail-in ballots tossed in Philadelphia County.
Pennsylvania county election boards must certify their results by Nov. 23. Gov. Tom Wolf, a Democrat, then issues certificates of election for federal offices. There is no deadline for completion, according to the National Council of State Legislatures.
The Electoral Count Act of 1887 prevents states from changing how electors are chosen after an election has been held, Potter said. Every state has laws giving voters the right to choose their electors.
But federal law also allows a legislature to select its own electors if a state has held an election and “failed to make a choice.” Foley described such a scenario in detail in a 2019 law review article, which he says was unfortunately prescient.
That law, which has never been invoked, is supposed to be for events like natural disasters, said Dan Mallinson, a public policy professor at Penn State Harrisburg.
“Pennsylvania would have to basically declare it failed to hold a proper election and then the legislature could technically step in,” he said. “That’s a pretty politically fraught road for the legislature.”
The Pennsylvania Attorney General’s office said on Thursday: “There is no remotely valid basis for a court to block the governor from certifying” the state’s presidential election results.
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Jason Henry, executive director of the Pennsylvania Democratic Party, said the flurry of lawsuits only causes drama. “I think you have a president of the United States who cannot come to grips that he lost the election,” he said. “This silliness needs to end,” Henry said.
The Trump campaign declined to respond on the record to questions about its strategy.
“More than 70.5 million Americans voted for President Trump and they deserve to know that the election was fair and secure,” Trump campaign spokesman Tim Murtaugh in a statement. “The goal is to make sure legal votes are counted and illegal votes are discarded, not only for this election, but for every election in the future.”
As of Thursday night, Biden had more than 77.3 million votes, according to The Associated Press, compared to about 72.2 million votes for Trump.
A Republican with knowledge of the Trump campaign’s legal efforts in Pennsylvania acknowledged most Republicans there don’t believe the campaign has the legal case to delay certification of the results or overturn the outcome of the election. The person spoke on the condition of anonymity to speak frankly.
Part of the political strategy, the person said, may have to do with fundraising but also with “payback for all the Russia stuff; they tried to upend this guy tirelessly for years.”
Arizona legislature would choose electors if deadline isn’t met
The lawsuit in Arizona asserts that, where ink splotches or voter error caused an apparent vote for both candidates, some poll workers simply processed ballots anyway, causing those ballots to be counted without a selection in the presidential race. Republicans are seeking an injunction to suspend certification until those ballots are reviewed.
A lawyer for Maricopa County said just 180 presidential ballots were flagged for “overvotes.” Biden’s lead in Arizona: about 11,400 votes.
Zachery Henry, a Republican spokesman, said if Arizona fails to certify election results by Dec. 8, the “Arizona Legislature would decide an alternate procedure to appoint electors” under federal law. Both legislative houses in the state are controlled by Republicans.
Sophia Solis, a spokeswoman for the Arizona Secretary of State’s Office, said she expects to finalize certification of results on Nov. 30, as scheduled. “Absent a court order that expressly requires the secretary to do otherwise, we will certify the election results pursuant to Arizona’s clearly established laws,” she said.
Deadlines in other states vary. In Wisconsin, the certification deadline is Dec. 1, according to the National Conference of State Legislatures. Nevada laws do not specify a deadline.
Secretary of State Brad Raffensperger: Georgia recount will be done in time
Election officials in Georgia are dealing with a spate of fraud allegations lobbed by the Trump campaign. That’s where Biden’s margin is thinnest, but it’s still much greater than the number of ballots called into question.
The campaign alleged Wednesday that ballots were cast by four deceased Georgians, which Georgia Secretary of State Brad Raffensperger’s office pledged to investigate. He called on anyone with evidence of election fraud or irregularities to bring it forward.
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Raffensperger announced on Wednesday that the state would conduct a full, manual recount of the presidential election. Biden leads Trump in Georgia by roughly 14,000 votes out of nearly 5 million ballots cast, well within the 0.5% margin that triggers an automatic recount.
Raffensperger vowed the recount would be completed in time for the state’s deadline to certify results Nov. 20. “It will be a heavy lift, but we will work with the counties to get this done in time,” Raffensperger said.
It would be ‘political suicide’ for any legislature to override ‘will of its people’
Such recounts — or more lawsuits — could delay certifications beyond the federal deadline for states to formally submit their electoral votes to Congress, said Cathy Cox, a Democrat who was Georgia’s secretary of state in 2000 when the presidential race results in Florida were contested. She’s now the dean of Mercer University School of Law.
But she said it’s extremely unlikely that a state legislature would step in and try and appoint Trump electors. “I think it would be political suicide for any legislature to go against the popular will of its people,” she said.
Many observers have said the onslaught of lawsuits doesn’t appear to be guided by a coherent strategy.
“It appears to me that they’re simply shooting into the air randomly and hoping to bring an enemy plane down, and that does not have a very high likelihood of success, especially as the vote count margins continue to widen in favor of Biden,” said Republican lawyer Robert Kelner.
He leads the election and political law practice at Covington & Burling. Other lawyers at his firm represent the Biden campaign, but Kelner is not involved.
But the longer the president and his campaign continue their legal offensive, there is a miniscule, “Hail Mary” chance they may shoot down that enemy plane, some specialists and scholars say.
Matthew Weil, director of the Election Project at the Bipartisan Policy Center, suggested Biden’s sizeable lead in Michigan would discourage the intervention of the state legislature if it got to that point.
“I’m just very skeptical,” he said. “I’ve seen all the conspiracy theories” about voter fraud, he said, “but even if you accept them as fact, you still don’t get to the number you need.
“By next week, when the states begin getting closer to certification, I think you will see a lot of these legal challenges fizzle out.”
