If Trump Tries to Sue His Way to Election Victory, Here’s What Happens

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It’s easy enough for the Trump campaign to file a lawsuit claiming improprieties,
but a lot harder to provide evidence of wrongdoing or a convincing legal argument.

Here’s what you need to know as the election lawsuits start to mount.


President Donald Trump declared victory in a 2 a.m. speech on Wednesday, saying he would take the election result to the Supreme Court.


A hearing on Wednesday in an election case captured in miniature the challenge for the Trump campaign as it gears up for what could become an all-out legal assault on presidential election results in key swing states: It’s easy enough to file a lawsuit claiming improprieties — in this case, that Pennsylvania had violated the law by allowing voters whose mail-in ballots were defective to correct them — but a lot harder to provide evidence of wrongdoing or a convincing legal argument. “I don’t understand how the integrity of the election was affected,” said U.S. District Judge Timothy Savage, something he repeated several times during the hearing. (However the judge rules, the case is unlikely to have a significant effect; only 93 ballots are at issue, a county election official said.)

“A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee,” said Justin Levitt, a professor at Loyola Law School in Los Angeles.

Levitt said judges by and large have ignored the noise of the race and the bluster of President Donald Trump’s Twitter feed. “They’ve actually demanded facts and haven’t been ruling on all-caps claims of fraud or suppression,” Levitt said. “They haven’t confused public relations with the predicate for litigation, and I would expect that to continue.”



If Levitt is right, that may augur poorly for the legal challenges to the presidential election. Either way, the number of cases is starting to rapidly increase. But lawsuits will do little good unless, as in the 2000 presidential election, the race winds up being so close that it comes down to a very thin margin of votes in one or more must-win states.

One of the few certainties is that we will not see the instant Bush v. Gore replay that Trump seems to have in mind. A few hours after voting ended, in a 2 a.m. speech that drew bipartisan condemnation for the president’s premature declaration that he had won the election, Trump baselessly described the ongoing ballot count as “a fraud on the American public.” “We’ll be going to the U.S. Supreme Court,” he told his supporters. “We want all voting to stop.” Trump is famously litigious, but he’s not a lawyer, and he seemed not to understand that apart from a small class of cases (largely territorial disputes between states), lawsuits don’t originate at the Supreme Court. The Trump campaign would have to file suit in a state or federal court and eventually appeal an adverse decision to the high court. Along the way, as the Pennsylvania court anecdote suggests, the Trump campaign would need to show evidence to back up his claim, and so far there’s no evidence of fraud in the ongoing ballot counts, which often run beyond election night. Tallying legitimate votes is not, despite the president’s tweeted claims, a form of fraud.

Once there’s a clearer picture of the outcome of the presidential election in key states like Pennsylvania, one party or the other may file lawsuits in state court challenging the legality of certain ballots or asking for a recount, a process described in ProPublica’s guide to election laws and lawsuits. Trump campaign officials told supporters on a conference call Wednesday that they believed they’re “in recount territory” in Wisconsin and Michigan, according to a report in The Washington Post. In a statement to The New York Times on Wednesday, Trump’s campaign manager, Bill Stepien, said the campaign planned to request a recount in Wisconsin “immediately.”

On Wednesday afternoon, the Trump campaign filed a lawsuit in Michigan state court asking that elections officials be ordered to stop opening mail-in ballots and tabulating votes until campaign officials are granted “meaningful access” to observe the process. The campaign’s statement about the suit did not explain in what way election officials had limited their access or why the campaign believes those limitations violate state law. The campaign also demanded “to review those ballots which were opened and counted while we did not have meaningful access” — a possible prelude to a hunt for technicalities that might allow the Trump team to challenge ballots cast for Democrats. The campaign made a similar request Wednesday in Pennsylvania state court.

Similar lawsuits filed by Republicans in Nevada and elsewhere have met with little success. In those lawsuits, the campaign has asked for essentially unfettered access to ballot canvassing locations. A judge who dismissed a similar lawsuit in Nevada observed that Trump campaign officials “seem to request unlimited access to all areas of the ballot counting area and observation of all information involved in the ballot counting process.” That was more than state law required, he wrote, and granting the request would slow the ballot count and impede social-distancing protocols. State election codes generally permit campaign officials to observe ballot canvassing, but not without reasonable limitations.

Trump campaign officials also said their legal team had or would challenge ballots in North Carolina and Georgia, traditional red states that remain too close to call.

It’s not likely the recount requests or ballot challenges, which are common in the wake of close elections, will make a difference in the outcome. “Recounts rarely change the vote totals very much,” said University of Kentucky law professor Joshua Douglas, and the same is true of challenges to the validity of ballots. That fact certainly won’t impede the filing of suits.

As of this moment, keeping in mind that the situation is developing by the hour, here are the other active lawsuits that could affect the election. Most of them are left over from among the more than 300 lawsuits filed before the election in 45 states, Puerto Rico and the District of Columbia, according to a database maintained by the Healthy Elections Project, a joint project of researchers at Stanford University and the Massachusetts Institute of Technology.

The election could come down to Pennsylvania, a crucial swing state where the outcome may not be known until the end of this week, and five lawsuits challenging the state’s election administration are currently pending in state and federal court.

In September, the Supreme Court of Pennsylvania ordered state election officials to accept mail-in ballots that arrive up to three days late, so long as they were either postmarked by Election Day or lacked a legible postmark. As in other states, the goal was to prevent mail delays from disenfranchising the historic number of Americans who, on account of the coronavirus pandemic, planned to vote by mail. Republicans appealed the ruling to the U.S. Supreme Court, which last week declined to rush a decision before the election.

Before the election, Trump derided the high court’s refusal to intervene as a “terrible decision.” “We’re going to go in the night of — as soon as that election’s over — we’re going in with our lawyers,” he told reporters gathered on a tarmac on Sunday ahead of a campaign rally in Hickory, North Carolina.

The president’s prediction was off by a day or so, but on Wednesday afternoon, his campaign asked to be allowed to intervene in the litigation (which was filed by Pennsylvania’s Republican party). The next move is up to the justices, who are still mulling whether to hear the case at all. Three justices — Samuel Alito, Neil Gorsuch and Clarence Thomas — indicated last week that the court might still take the case and void late ballots after the election, and Pennsylvania election officials have agreed to store late-arriving ballots separately, in case the high court orders them thrown out. The case’s fate may hinge on the views of the newest justice, Amy Coney Barrett, who didn’t participate in last week’s decision.

As noted, Republicans have sued Pennsylvania (there are actually two cases, one each in state and federal court), targeting efforts by state election officials to alert voters who submitted defective mail-in ballots — like failing to include a “secrecy envelope,” a requirement voting-rights advocates have worried could invalidate an unusually high volume of ballots — so they could either fix their error or submit a provisional ballot. Election officials have defended their practices as in line with state law. In the federal case, as noted, the judge expressed skepticism about the claim. An initial conference will be held Wednesday afternoon in the other case, which targets this practice statewide. Also Wednesday, the Trump campaign said it was filing a lawsuit in federal court in Pennsylvania over a decision it said election officials had made to extend the deadline for first-time voters to provide proof of identification.

In Nevada, late on Tuesday, the state’s Supreme Court rebuffed a last-minute effort by Republicans to temporarily block certain aspects of mail-in ballot processing in Clark County, a bastion of Democratic voters that is home to Las Vegas. That included the use of machines to speed the process of checking voter signatures against state records.

The court agreed to hear the case on an expedited basis, with a decision possible as early as next week. But its ruling expressed doubts about the lawsuit’s core claims. The plaintiffs “have not demonstrated a sufficient likelihood of success,” the state’s highest court wrote. The lower court had found their “allegations lacked evidentiary support, and their request for relief to this court is not supported by affidavit or record materials supporting many of the factual statements made therein.” The order went on to observe that the plaintiffs had also failed to identify “any mandatory statutory duty” that election officials “appear to have ignored,” and that they had failed to counter certain key conclusions of the district court.

In Minnesota, former Vice President Joe Biden has a sizable lead, but should that lead narrow, a ruling last week from a federal appeals court could have implications for the outcome in that state’s presidential vote. The court, in a 2-1 ruling along ideological lines, ordered state election officials to separate late-arriving ballots and indicated that it was likely to invalidate them when it ruled on the legality of a post-Election Day buffer period agreed to by state officials in light of the large number of mail-in ballots expected amid the coronavirus pandemic.

Texas, comfortably in Trump’s column, is the inverse of Minnesota. But a late effort by Republicans to throw out ballots cast via drive-thru voting in Harris County — home to Houston and a large chunk of the state’s Democratic electorate — remains live. A district court judge ruled against the plaintiffs, and on Monday a federal appeals court declined to block drive-thru voting on Election Day. The Republicans, however, have not ruled out seeking review by the full appeals court or taking their case to the U.S. Supreme Court. (The Texas Supreme Court, in a separate case, declined to block drive-thru voting.) Nevertheless, Harris County officials closed nine of 10 drive-thru polling locations on Tuesday to minimize the risk that large numbers of votes would get tossed if the plaintiffs ultimately prevailed.

Finally, North Carolina is not viewed as likely to decide the presidential election, but a tight Senate race there has major implications for control of the chamber come January. Last week, the Supreme Court declined to temporarily block a buffer period for late-arriving ballots, but the case is still working its way through the lower federal courts and could return to the high court. The three justices who expressed skepticism about Pennsylvania’s buffer period raised similar questions about the legality of North Carolina’s.
 

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In court, Giuliani argues to block Biden win in Pennsylvania



With Georgia the only uncalled state, Biden has collected at least 290 electoral votes — just enough that overturning Pennsylvania’s result would not open an avenue to a second term for Trump.

Biden’s margin in Pennsylvania is now about 81,000 votes, or more than 1 percentage point.
 

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Pennsylvania Supreme Court reverses rare Trump legal victory

One of the rare legal victories President Trump's campaign picked up in its election challenge was taken away, dealing another blow to the increasingly long-shot effort.

Pennsylvania's Supreme Court on Tuesday reversed a court order that required Philadelphia election officials to let observers within six feet of vote counters after the Trump campaign alleged observers were being kept too far away at 15 to 18 feet. The state's high court, in a 5-2 decision (two of the justices preferred to rule it as moot), said Pennsylvania law gives Philadelphia officials leeway to decide the rules for observers. Even the two conservative justices who dissented acknowledged that the Trump campaign's argument that legitimate votes should be invalidated because of improper observation practices was "misguided," The Guardian reports.


Source: The Guardian

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The reason Trump's election lawsuits are tanking
Opinion by Elie Honig



Updated 4:00 PM ET, Mon November 16, 2020


"There's no delicate way to put this: Thus far, Trump, his campaign and their surrogates have gotten absolutely pummeled in the courts," writes Elie Honig for
CNN Opinion
. "One of the great things about our legal system is that it requires actual proof — not tweets, not public statements, not viral videos — but actual verifiable evidence."


Analyst says Trump cases are getting dismissed at 'record speed' 03:18
Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers' questions on "CNN Newsroom with Ana Cabrera" on weekends.
(CNN)President Donald Trump vowed over a week ago to unleash an imposing barrage of legal challenges to the result of an election that is, and should universally be recognized as, over and done. In a statement last weekend, he vowed that, on Monday, November 7, "Our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated."
Elie Honig


Elie Honig
Well, last Monday has come and gone. Turns out, all Trump's attorneys have delivered is a ridiculous mishmash of lawsuits that run the gamut from weak to entirely meritless to downright frivolous. Trump and his attorneys are humiliating themselves, and they're damaging our democracy in the process.
There's no delicate way to put this: Thus far, Trump, his campaign and their surrogates have gotten absolutely pummeled in the courts. One of the great things about our legal system is that it requires actual proof — not tweets, not public statements, not viral videos — but actual verifiable evidence. And the Trump campaign's efforts to, well, trump up evidence of voter fraud have failed spectacularly.


In one case filed in Georgia, the Trump campaign alleged that 53 ballots had been counted even though they had been cast after the deadline. But both of the Trump campaign's witnesses testified they did not actually know when the ballots had been received, and two other witnesses confirmed that the ballots had been received on time. That case was quickly dismissed.
In another case in Michigan, the Trump campaign claimed that certain late-arriving ballots had been counted improperly. Their "evidence" was a Republican election observer who claimed that an unnamed poll worker showed her a Post-it note of unknown provenance alleging improper ballot counting. That's not evidence, that's hearsay piled up on hearsay. That case, too, was quickly tossed out.
The tragedy of Trump's refusal to concede

The tragedy of Trump's refusal to concede

Last week, the Trump campaign somehow managed to lose or voluntarily drop nine different cases in one day. Indeed, the Trump campaign and its surrogates have even begun to pull back their own lawsuits, giving up on their case in Arizona and dropping their appeal of a loss in Nevada. And, on Monday, voters in four states dropped their lawsuits seeking to contest election results in Georgia, Michigan, Pennsylvania and Wisconsin.
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Even the lawyers are jumping ship; multiple firms have now abandoned the Trump campaign's effort to dispute the election results.
The Trump campaign won one minor case in Pennsylvania, and they still might get lucky and win another here or there -- among the many they have scattered across the country. But even if they end up with a few victories, it will likely be to no avail.
Given President-elect Joe Biden's Electoral College margin of 306-232, even if Trump miraculously reversed the outcomes in, say, Pennsylvania (with its 20 electoral votes) and Georgia (16 electoral votes), Biden still wins.
And Biden's margins in those states, and other key swing states, run to the tens of thousands of votes. Trump's lawsuits thus far haven't even come close to proving (or in some cases have not even alleged) voter fraud on anything near that scale.
Ex-press secretary: Trump ruined this job

Ex-press secretary: Trump ruined this job

Judges so far have gotten it right. They've tossed out the preposterously infirm lawsuits nearly as quickly as pro-Trump attorneys have filed them. As a result, our judiciary has rightly prevented the bogus "massive fraud" narrative from taking any further hold than it already has gathered from the wild pronouncements of Trump and his enablers.
It's tempting to have a laugh at the losing string of Trump campaign lawsuits. But those bringing these lawsuits deserve derision for their stubborn, pathetic attempts to conjure massive fraud where no such thing exists. However, they also are doing something more insidious: They are undermining public confidence in our election system and our democratic process.
Now, your questions
Tim (Delaware): Could Republican state legislatures appoint their own slates of presidential electors to vote for President Donald Trump, even if their states voted for Biden?
This won't happen, for both legal and political reasons.
Legally, Article II of the Constitution does grant state legislatures the power to determine the manner of choosing presidential electors. But every state has long had laws on the books assigning presidential electors based on the popular vote of that state (most states assign electors on an all-or-nothing basis; Nebraska and Maine appoint electors based on the popular vote in each congressional district).
While state legislatures could change the manner of appointing their electors, they would need to do so by (1) passing a new law, and (2) doing it before the election for which the new rule would become effective. As a matter of basic fairness and as a legal principle, it would be nearly impossible for a state legislature to change the rules of appointment after the voters have cast their ballots in a given election.
As a political matter, it is very unlikely that state legislatures would even seriously consider appointing a slate of electors, after the election, contrary to their states' popular votes. No state legislature of either party has shown any serious inclination to even consider such a precipitous, politically self-destructive move. Don't lose sleep over this one.

Gordon (Texas): If the Senate ends up split 50-50, who controls the majority and the agenda?
Republicans currently hold a 50-48 advantage over Democrats for the upcoming Senate session, which will begin in January 2021, with two Georgia runoffs pending. If Democrats win both those Georgia runoffs, the Senate will be split 50-50.
Article I of the Constitution provides that the vice president breaks a tie vote in the Senate: "The Vice President of the United States shall be President of the US Senate, but shall have no vote, unless they be equally divided." (This is, interestingly, the only specific duty of the vice president outlined in the Constitution, other than succeeding to the presidency upon death or resignation of the president).
With Kamala Harris soon to take office as Vice President, the Democrats would then hold the tiebreaker advantage.
Tim (Texas): Are there any legal requirements to become a justice on the Supreme Court?
There are no age, residency or nationality requirements to become a Supreme Court justice, unlike many other of our highest public offices. For example, the US Constitution requires that the president must be at least 35 years old, be a "natural born citizen" of the United States and have 14 years of residency in the country. A US senator must be 30 years old, with nine years of US citizenship and must reside in the state he or she represents. And a US representative must be at least 25 years old, with seven years of citizenship and must reside in the state he or she represents.
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The Constitution does not even specify that a Supreme Court justice must be a lawyer. Two justices who served in the 1940s and 1950s, James Byrnes and Robert Jackson, studied law but did not hold formal law degrees (though Jackson was awarded a degree the same year he was confirmed to the court).
 

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In scathing ruling, judge dismisses Trump campaign's effort to overturn election results in Pennsylvania

Kevin McCoy, USA TODAY 1 hr ago

Donald Trump wearing a suit and tie standing in front of a flag: Democratic presidential nominee Joe Biden (left) and President Donald Trump (right) are pictured during their respective campaigns.
© Angela Weiss, AFP via Getty Images | Saul Loeb/AFP Democratic presidential nominee Joe Biden (left) and President Donald Trump (right) are pictured during their respective campaigns.

A Pennsylvania federal court on Saturday denied President Donald Trump's request to block certification of the state's 2020 election results in order to give his campaign lawyers time to find evidence to support their claims of a fraudulent election system and improper ballot counting.

In a scathing ruling, U.S. District Court Judge Matthew Brann criticized the lack of evidence the Trump campaign presented to support its argument to potentially disenfranchise every voter in the commonwealth who cast a ballot in the 2020 elections — nearly 7 million in all.

The ruling entirely dismissed the case filed by Trump's campaign and two Republican voters who said their ballots were rejected for technicalities, while those cast by thousands of voters in the state's Democratic strongholds were accepted.

"This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated," Brann wrote in the 37-page decision.

"One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief," he wrote.

"That has not happened. Instead, this court has been presented with strained legal arguments without merit and speculative accusations, unpled ... and unsupported by evidence," Brann wrote. "In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more."

The decision slams the door on a pivotal case in Trump's effort to get courts to overturn election results in key states he lost to former Vice President Joe Biden. It came two days before Pennsylvania's Monday deadline to certify its results, a precursor to formally awarding the state's 20 electoral votes to Biden.

A state canvassing board in Michigan, which Biden also carried, is scheduled to vote on certifying its totals Monday.

Brann's decision rejected the Trump campaign's claims that Pennsylvania's elections procedures were unconstitutional because they disadvantaged Trump voters and boosted those who voted for Joe Biden.

Without supplying any witness affidavits or other evidence, the campaign argued that tens of thousands of mail-in ballots should have been rejected for defects.

The Trump campaign faced an uphill battle from the start in the closely-watched case, which included arguments similar to those in lawsuits filed in other battleground states.

The campaign initially launched a legal broadside against mail voting, arguing that Pennsylvania's secretary of the commonwealth and elections officials in seven counties with high Democratic Party enrollment created an unconstitutional, two-tiered voting system.

The campaign argued that in-person voters, who largely voted for Trump, had to abide by strictly enforced rules. People who voted by mail, who largely cast their ballots for Biden, were subject to lax rules, the campaign argued.

But the campaign abruptly shifted focus in an amended complaint that was filed as one team of lawyers departed and another entered — and as a federal appeals court ruling in a different case foreclosed certain constitutional arguments.

The second complaint focused on allegations that elections officials improperly blocked Republican watchers from meaningful access to the processing of mail ballots.

Then Rudy Giuliani, Trump's personal lawyer and a former New York City mayor, entered the case and the legal strategy changed yet again. This time, the Trump campaign combined many of the legal arguments of the prior complaints in a proposed third version. The lawyers accused the state's secretary of the commonwealth and elections officials in seven Democrat-heavy counties of scheming to help elect Biden.

The proposed third complaint urged the federal court to disqualify as many as 1.5 million voters, which would have wiped out the 81,813-vote edge Biden held in Pennsylvania as of Saturday night.

Legal experts rap Trump legal challenge: Nine legal experts say Trump's lawsuit challenging election results in Pennsylvania is dead on arrival

Nine election law and constitutional law experts surveyed by USA TODAY criticized the Trump campaign's initial lawsuit. They said courts are reluctant to invalidate ballots cast by voters who followed what they believed to be the election rules.

The campaign's allegations didn't raise constitutional questions, said the experts, who added that mail voting is legal and used in many states beyond Pennsylvania.

Their criticism sharpened as the Trump campaign kept changing its arguments.

“I have never seen a high-profile case like this cycle through so many sets of lawyers so quickly, nor a high-profile election case not handled by election law and federal court and appeals court specialists,” Richard Hasen, a professor of law and political science at the University of California, Irvine, and the author of Election Law Blog, wrote in an email.

“The claims are both legally and factually faulty," Hasen wrote.

Where's the evidence?: In Pennsylvania, Trump wants questioned ballots or the entire election thrown out. His claims of fraud remain baseless.

Kermit Roosevelt, a constitutional law expert at the University of Pennsylvania Law School, said the Trump campaign is "sending the message that election outcomes that go against Republicans are inherently illegitimate and need not be accepted — even if there is no evidence and no plausible legal argument that anything was wrong with the election."


This article originally appeared on USA TODAY: In scathing ruling, judge dismisses Trump campaign's effort to overturn election results in Pennsylvania


In scathing ruling, judge dismisses Trump campaign's effort to overturn election results in Pennsylvania (msn.com)
 

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CNNFederal judge dismisses Trump campaign Pennsylvania lawsuit


By Katelyn Polantz
and Kevin Bohn,
CNN 35 mins ago
http://a.msn.com/01/en-us/BB1bf3OV?ocid=sf

A federal judge dealt a death blow to the Trump campaign's effort to overturn President-elect Joe Biden's win of the presidency on Saturday, by dismissing a closely watched lawsuit that sought to invalidate millions of Pennsylvania votes.


"It is not in the power of this Court to violate the Constitution," Judge Matthew Brann of the US District Court in the Middle District of Pennsylvania wrote on Saturday in a withering decision, hours after the final round of filings in the case came in. The judge wholeheartedly rejected the Trump campaign's attempt to throw out the Pennsylvania vote, noting that Biden has won the state and results will be certified by state officials on Monday. Biden has a margin of more than 81,000 votes in the state.

"In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more," the judge wrote. "At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted."

Though the case was always extremely unlikely to succeed, President Donald Trump's backers and legal team -- and particularly his personal attorney Rudy Giuliani -- had pinned their hopes on the federal judge in Pennsylvania giving some credibility to their suspicions of fraud and entertaining Trump's attempt to overturn the popular vote for Biden.

But Brann, a longtime and well-known Republican in Pennsylvania, refused.

Shortly after the decision came down, Republican Sen. Pat Toomey of Pennsylvania congratulated Biden as the President-elect, breaking from party leaders and a vast majority of congressional Republicans who continue to back Trump's efforts to challenge the results.

This was essentially the last major case seeking to throw out or block enough votes that could swing a key state in Trump's favor, and Brann's decision on Saturday is at least the 30th loss or withdrawal of a case from the Trump campaign and its allies since Election Day. There have only been two wins in court for Republicans, about very small numbers of votes.

"Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated," Brann wrote Saturday.

In the case, Trump's legal team led by Giuliani had attempted to claim that the Equal Protection rights of two Pennsylvania voters were violated because the state had allowed counties to decide whether absentee ballots sent in with technical problems could be fixed by the voters. The two voters in the lawsuit said that in their counties, they were not allowed to "cure" their ballots, and thus had their ballots rejected, while other counties, like heavily Democratic Philadelphia County, allowed voters to "cure" absentee ballots. That discrepancy, they claimed, meant that Pennsylvania's election results in their entirety should be blocked by court order, which theoretically, could deprive Biden of the state's 20 Electoral College votes.

Brann called the legal reasoning behind the Trump campaign's Equal Protection claim "Frankenstein's Monster."

"The answer to invalidated ballots is not to invalidate millions more," Brann wrote.

Brann also admonished the Trump campaign for presenting no factual proof of voter fraud or other allegations -- evidence that Giuliani and Trump's supporters have repeatedly said is in the works but has never materialized. Elections officials in multiple states as well as judges have said there was no widespread fraud in the 2020 election.

Giuliani, who had swept into the case at the last minute ahead of a hearing on Tuesday before Brann, has been widely criticized for ignoring legal reasoning, leading a team that's made sloppy mistakes in its filings, and for pushing nonsensical and unfounded claims of conspiracy against Trump in Democratic-leaning cities.

"One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens. That has not happened," Brann added. "Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence."

The counties in the state are scheduled to certify their election results on Monday.

The judge said any further consideration of this issue "would unduly delay resolution of the issues" regarding certification, and he closed the case. His order on Saturday notes that the Trump campaign cannot try to resurface their claims in a rejiggered version of the lawsuit.

The Trump campaign on Saturday night said they would appeal Brann's ruling, and quickly, with the intention of taking the case to the US Supreme Court.

Toomey emerged as a rare Republican voice so far acknowledging Trump's legal avenues have come to an end.

"With today's decision by Judge Matthew Brann, a longtime conservative Republican whom I know to be a fair and unbiased jurist, to dismiss the Trump campaign's lawsuit, President Trump has exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania," the GOP senator said in a statement.

"These developments, together with the outcomes in the rest of the nation, confirm that Joe Biden won the 2020 election and will become the 46th President of the United States."

Mike Gwin, a spokesperson for Biden, praised the decision to dismiss the lawsuit.

"The judge's ruling couldn't be clearer: our people, laws, and institutions demand more — and our country will not tolerate Trump's attempt to reverse the results of an election that he decisively lost," Gwin said in a statement.

Pennsylvania Attorney General Josh Shapiro also praised the decision in a statement Saturday night. "These claims were meritless from the start and for an audience of one. The will of the people will prevail. These baseless lawsuits need to end," he said.


Federal judge dismisses Trump campaign Pennsylvania lawsuit (msn.com)
 

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2020 ELECTIONS


Federal judge eviscerates Trump lawsuit over Pennsylvania results: "This is simply not how the Constitution works"

The judge issued a withering opinion in his dismissal of the suit that Rudy Giuliani turned up to argue in a small Pennsylvania city this week.



Rudy Giuliani stands next to a map during a press conference.

Rudy Giuliani stands next to a map during a press conference about various lawsuits related to the 2020 election on Nov. 19, 2020 in Washington. | Drew Angerer/Getty Images


By JOSH GERSTEIN,
KYLE CHENEY and
ZACH MONTELLARO
11/21/2020 06:5
7 PM EST


A federal judge in Pennsylvania eviscerated President Donald Trump’s attempt to throw out millions of votes Saturday, dismissing his campaign’s lawsuit with a withering opinion that described a dearth of proof to justify the drastic demand.
“This Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence,”
U.S. District Judge Matthew Brann wrote. “In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.”

The ruling is the latest rejection by federal and state court judges of Trump’s effort to overturn President-elect Joe Biden’s victory
. And the judge’s stinging refutation of the campaign’s claims is yet another indication that Trump’s last-ditch effort to cling to power is slipping. Pennsylvania counties are due to certify their votes by Monday, leaving the final statewide certification in the hands of Secretary of State Kathy Boockvar, a Democrat and a defendant in the lawsuit.

Trump has faced a series of legal and political setbacks in the last two days. Some of his allies on Capitol Hill have begun to publicly recognize Biden’s victory. Michigan state lawmakers, whom Trump summoned to the Oval Office on Friday, emerged insisting they would not intervene in their state’s election process to aid Trump. Georgia’s Republican governor and secretary of state certified a victory for Biden Friday, despite Trump’s objections. And a Republican-controlled board in Arizona’s largest county certified its results Friday evening and rejected any claims of fraud.
The sharply worded, 37-page opinion is a blow to the lawyer Trump picked just last weekend to spearhead his legal efforts to challenge the election, former New York Mayor Rudy Giuliani. Giuliani made an unexpected appearance in Brann’s courtroom in the small central Pennsylvania city of Williamsport on Tuesday.
https://www.politico.com/newsletters/transition-playbook

Brann also expressed alarm at the draconian relief that Giuliani sought: The disenfranchisement of 7 million Pennsylvania voters — the state’s entire electorate — in the hopes of stripping its 20 electoral votes from Biden’s column.

“This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated,” he said, “One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption … That has not happened.”

In his opinion, Brann picked apart each argument offered by Giuliani.

The judge dismissed the Trump campaign’s argument that its observers were unfairly denied access to vote-counting operations in certain counties, noting that both Trump and Biden’s observers were subject to the same restrictions. He also said the Trump team’s lawyers misunderstood the lessons of Bush v. Gore — the Supreme Court ruling that delivered the 2000 election to George W. Bush — in their attempt to apply it to the current case.

And Brann rejected the notion that counties who offered voters an opportunity to “cure” defective mail-in ballots should have those votes thrown out because other counties — those with a larger proportion of Trump voters — did not. The decision not to offer voters a chance to cure ballots was not made by the parties the Trump campaign sued, namely Boockvar and seven heavily Democratic counties.

In rejecting this claim, Brann shredded the Trump legal team’s mix-and-match approach to their argument.

“This claim, like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent,” Brann wrote.


‘This is simply not how the Constitution works’: Federal judge eviscerates Trump lawsuit over Pennsylvania results - POLITICO
 

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Donor to pro-Trump group sues to get his money back after dropped election lawsuits

A North Carolina donor who gave $2.5 million to a group promising to help President Donald Trump's effort to overturn the results of the general election is now suing to get his money back.


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Jeanine Santucci


Fred Eshelman, who has donated tens of thousands of dollars to Republicans in 2020, according to Federal Election Commission data, says in his lawsuit that the organization True the Vote had not fulfilled the conditions of his monetary gift.

The organization disputes the lawsuit's claims as "not accurate."

The initiative was designed to investigate and litigate claims of voter fraud and "solicit whistleblower testimonies," "build public momentum," "galvanize Republican legislative support in key states," "analyze data to identify patterns of election subversion" and "file lawsuits ... with the capacity to be heard by the Supreme Court of the United States."

True the Vote dropped lawsuits in Georgia, Michigan, Pennsylvania and Wisconsin on Nov. 16.


Trump has pushed baseless claims that there was widespread voter fraud and has called for President-elect Joe Biden's victory is several states to be overturned. But experts have said the 2020 general election was one of the most secure in the nation's history.

'Calling an election unfair does not make it so': Appeals court denies Trump campaign's effort to overturn Biden's win in Pennsylvania

The Trump campaign and its allies have faced repeated court defeats in election cases. They have filed lawsuits, demanded recounts and protested procedures in several states to try and throw out ballots and block certification of results in Michigan, Arizona, Georgia, Wisconsin and Pennsylvania, key battlegrounds that went to Biden.

However, the Trump campaign's lawsuits did not allege widespread fraud, despite public claims to the contrary. The failed court efforts have undermined the president's continued, baseless claims of fraud, and some top Republican donors have shifted focus to Republican efforts to win the Georgia Senate runoffs.

Eshelman said in his lawsuit that True the Vote President Catherine Engelbrecht told him she believed Validate the Vote was necessary because of "significant evidence that there were numerous instances of illegal ballots being cast and counted in the 2020 general election."

What Eshelman's lawsuit says
Eshelman's lawsuit alleges that True the Vote's "consistent delay and inability to make progress on the goals ... suggested that many of those goals might not be met since many important deadlines relating to state election results were rapidly approaching."

Engelbrecht and the organization were "vague" and unresponsive to requests by Eshelman for updates on their progress in the days after Election Day, he claimed.


True the Vote says on its website that it aims to "empower and equip citizens to ensure that our election process is protected from fraud and exploitation."

"While we stand by the voters’ testimony that was brought forth, barriers to advancing our arguments, coupled with constraints on time, made it necessary for us to pursue a different path," Engelbrecht wrote in a statement on Nov. 17.

The lawsuit also states that an attorney for the group, Jim Bopp, said $1 million would be returned if Eshelman agreed not to sue.

Engelbrecht said in a statement to USA TODAY that the funds were used for the goals of the Validate the Vote initiative, and that those efforts are ongoing despite the lawsuits being dropped.

This article originally appeared on USA TODAY: Donor to pro-Trump group sues to get his money back after dropped election lawsuits


Donor to pro-Trump group sues to get his money back after dropped election lawsuits (msn.com)
 

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The Long Odds Facing Trump’s Attempts to Get State Legislatures to Override Election Results

State representatives in Michigan, Pennsylvania, Wisconsin, Arizona and Georgia could do the president’s bidding. But the political and legal obstacles are formidable.




On Friday afternoon, President Donald Trump is set to hold a meeting at the White House with the Republican leaders of Michigan’s Senate and House of Representatives. It’s unclear what the president plans to discuss, but multiple press reports suggest Trump, in a desperate bid to cling to power, has pinned his hopes on persuading GOP-controlled legislatures in battleground states that voted for Joe Biden to intervene and throw the election to him. That aspiration cropped up in the Trump campaign’s courtroom maneuverings this week. Legal papers filed with a federal court in central Pennsylvania (the campaign filed a draft version, apparently in error), showed that the campaign had contemplated — but ultimately decided against — asking the judge to order “the Pennsylvania General Assembly to choose Pennsylvania’s electors.”

Five states fit the description of battleground states with GOP-run legislatures that voted for Biden: Michigan, Wisconsin, Pennsylvania, Arizona and Georgia. It would be difficult to convince lawmakers to overturn the will of voters in even one state. For Trump to snatch victory from the jaws of defeat, he would need to pull that trick off in three states.

That’s a very tall order. There are steep political hurdles, starting with the fact that the two Michigan lawmakers visiting the White House on Friday have previously made statements rejecting legislative intervention. But even if those lawmakers waver or succumb to Trump’s arguments, as many Republicans have, there are legal impediments, and they’re almost certainly insurmountable.

Unlike the fevered cries of election fraud — which many lawyers in the Trump camp have undercut by acknowledging in court that they have no evidence of fraud — the Trump side’s legislature theory has some basis in fact. Article II of the U.S. Constitution holds that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” to vote for president as a member of the Electoral College. In the early days of the republic, some legislatures chose electors directly or vested that power in other state officials. Today, every state allocates presidential electors by popular vote (and all but Maine and Nebraska apportion them in winner-take-all fashion).

As far as the Constitution is concerned, there’s nothing to stop a state legislature from reclaiming that power for itself, at least prospectively. Separately, a federal law, the Electoral Count Act of 1887, provides that whenever a state “has failed to make a choice” in a presidential election, electors can be chosen “in such a manner as the legislature of such State may direct.”

But even so, there’s a more immediate obstacle: state law. In the five states where Trump’s team hopes GOP-run statehouses will hand him a second term, the popular vote is enshrined in the state constitution, the state’s election code or both.

Consider Michigan, which Biden carried by nearly 158,000 votes. The state’s election code specifies that the presidential electors “who shall be considered elected are those whose names have been certified to the secretary of state by that political party receiving the greatest number of votes” for president — the winner, that is, of the popular vote. The Michigan Constitution grants qualified citizens “the right, once registered, to vote a secret ballot in all elections,” including “in the election for president and vice-president of the United States.”

The two Michigan Republicans expected to meet with Trump on Friday, Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield, have expressed concerns about irregularities and potential fraud in the Michigan election, a pet subject of the president and his allies. The Trump campaign and its supporters, however, have failed to substantiate their claims, despite papering state and federal courts with affidavits from GOP election observers and others who purport to have witnessed suspicious behavior or wrongdoing by election workers in Detroit, a Democratic stronghold with a sizable Black population. Last Friday, one Michigan judge called affidavits submitted by Republican observers “rife with speculation and guess-work about sinister motives” of poll workers. On Thursday, the Trump campaign withdrew a federal lawsuit it had filed in the state, claiming — falsely, according to Michigan election officials — that the county election board for the Detroit area had declined to certify the county’s election result.

Yet — up till now, at least — both Shirkey and Chatfield have rejected the proposition that state legislators might intervene to supplant the will of Michigan voters. “That’s not going to happen,” Shirkey told Bridge Michigan on Tuesday. He noted that state law left up to the electorate who would receive the state’s 16 electoral votes. Chatfield made a similar point in a statement on Nov. 6, a few days after the election, though he gave it a Trump-y spin, calling for every “legal vote” to be counted, a phrase Trump and his allies have adopted to imply that there exist large numbers of illegal votes. “The candidate who wins the most of those votes will win Michigan’s electoral votes, just like it always has been,” Chatfield said. “Nothing about that process will change in 2020.” Their counterparts in Pennsylvania, Wisconsin and Arizona have made similar statements.

Even if Trump were to change the Michigan lawmakers’ minds on Friday, the Legislature can’t amend state law by fiat. A constitutional amendment has to be itself ratified by popular vote, and if it’s introduced in the Legislature, it first has to pass both houses by supermajority margins. The GOP possesses only a bare legislative majority in either house. Amendments to the election code, meanwhile, are subject to veto by the governor. In Michigan, that’s Democrat Gretchen Whitmer, a committed Trump antagonist who would inevitably veto any legislative attempt at the wholesale disenfranchisement of her constituents. Without supermajorities, Republican legislators alone are impotent to override her veto.

Trump faces a similar dynamic in Wisconsin and Pennsylvania, both of which have Democratic governors and legislatures controlled by the GOP (but not by enough to overcome a veto by the governor). Only Arizona and Georgia have Republican-dominated statehouses and Republican governors. Legislatures there have shown no particular inclination to intervene on Trump’s behalf. Even if they went along with Trump’s plan, the president would still be 11 electoral votes shy of the 270 he needs to prevail over Biden.

In concurring and dissenting opinions during the run-up to Election Day, three Supreme Court justices appeared to hint at one way around the intervention of a Democratic governor. Trump and his supporters have apparently taken the hint; they’ve brought up the argument repeatedly in postelection litigation. The justices, Brett Kavanaugh, Neil Gorsuch and Samuel Alito, seemed to argue that the Constitution assigned to each state legislature the exclusive power to decide how to choose presidential electors, a power free from the constraints of state courts, election officials or even a governor’s veto power. A version of this argument was rejected by the U.S. Supreme Court in 2015, but two of the five justices in the majority, Ruth Bader Ginsburg and Anthony Kennedy, are no longer on the court. (Other lawyers don’t go quite as far and argue that legislatures still have to follow their state’s constitutional lawmaking process, which preserves gubernatorial vetoes.)

Whether a legislature could step in after the fact, however, to take the choice away from its citizens is an open question, and in any event, legal scholars say it’s unlikely the high court would agree to change the rules after an election in a way that would flip its outcome. Some are skeptical that Kavanaugh, Gorsuch and Alito intended to go as far as they seemed to in their concurrences and dissents. Their approach “calls for federal courts to intervene quite assertively and resolve state law disputes between state courts or state elections officials on the one hand and state legislatures on the other,” said Robert Yablon, a law professor at the University of Wisconsin. “That’s not a role federal courts normally play.”

One reason for Trump and his allies to seek to delay certification of state election results is that it could strengthen their hand as key deadlines set by federal law approach in early and mid-December. The Electoral Count Act expressly authorizes the legislature to step in and pick electors even after its state has held a popular vote for president if the state “has failed to make a choice.” But according to a new law review article by Justin Levitt, an election law scholar at Loyola Law School, the Electoral Count Act, more clearly than the Constitution, means for the legislature to pick electors through its ordinary lawmaking processes — passing a bill that would require the governor’s signature before becoming law. (The article will be published in the New York University Law Review next year but has been posted to the Social Science Research Network, an online repository of scholarship.)

One result of the Trump campaign’s arguments is to leave state legislatures squeezed from both sides. Reuters on Thursday reported that the Trump campaign believes state lawmakers will fear that a failure to act could set off a backlash among voters in their districts loyal to the president. A Monmouth University poll released this week found that three-quarters of Trump supporters attribute Biden’s victory to fraud, despite the absence of any evidence to support this claim.

Even so, state lawmakers enter uncharted territory if they openly subvert the will of their constituents to prop up a candidate who was outvoted in their state. The backlash against a naked power grab could well be far more profound than any backlash against a refusal to grab the election for an outgoing president. Nobody knows. That uncertainty is compounded by the fact that three state legislatures would have to intercede for Trump’s new stratagem to pay off. The first to do so would put a lot at risk — potentially to achieve nothing.
 
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