The Trump Election Lawsuit Chronicles

November 24, 2020 by Dan McCue
Rudy Giuliani, a lawyer for President Donald Trump, speaks during a news conference on legal challenges to vote counting in Pennsylvania, Wednesday, Nov. 4, 2020, in Philadelphia. (AP Photo/Matt Slocum)

WASHINGTON – Getting a formal concession, finally, might all come down to this.

The 3rd U.S. Circuit Court of appeals on Monday granted a request from President Donald Trump’s campaign to consider, on an expedited basis, an appeal of a mere facet of a federal judge’s ruling that denied the campaign the opportunity to challenge the way Pennsylvania conducted its piece of the 2020 presidential election.

Specifically, the campaign wants the 3rd Circuit to review whether U.S. District Judge Matthew Brann erred when he refused to allow the campaign to file a second amended complaint on the matter.

To most observers’ surprise the 3rd Circuit did not dismiss the matter out of hand, instead giving both sides time to submit briefs on the issues raised. Trump’s team was given until the end of business Monday to do so. Pennsylvania officials were given until the end of the day today.

Though some on the Trump side touted that Circuit’s action as a win, it was actually more of a loss. The 3rd Circuit only agreed to consider briefs. In doing so, it effectively denied the campaign’s request to delay certification of the results in Pennsylvania’s 67 counties.

State officials carried out that certification Tuesday morning.

Meanwhile, the Pennsylvania Voters Alliance and a group of conservative Republicans, including a number of state House members, filed an appeal on Monday of Brann’s denial of their motion to intervene on behalf of the Trump campaign.

In this Nov. 6, 2020, photo, a canvas observer photographs Lehigh County provisional ballots as vote counting in the general election continues in Allentown, Pa. (AP Photo/Mary Altaffer)

Brann ruled the motion was moot after he dismissed the Trump campaign case.

Could it be, the president just got tired of “winning”?

The president has now lost 35 of the 43 of the post election cases alleging election fraud or other irregularities that he’s brought in six states since the election, according to a Twitter tally maintained by  Marc Elias, a Democratic election lawyer.

And he’s won only two.

Trump’s filling in the 3rd Circuit seemed to acknowledge both that the president’s legal battle over the election is now nearly over and that Tuesday’s certification of the vote in Pennsylvania was a foregone conclusion.

He specifically asked the appeals court to block the “effects” of certification, namely that it would make Biden the absolute winner of the contest.

“This action is of nationwide importance because of the consequences of flawed election processes in the election for the president of the United States in the Commonwealth, which could turn the election in favor of either candidate,” the filing said.

A ruling by the 3rd Circuit on whatever documents are ultimately filed by the parties could prompt an appeal to the U.S. Supreme Court.

But this again would be mostly grasping at straws, because there is absolutely no guarantee the high court would choose to hear an appeal in the case — especially if the outcome in Pennsylvania could not possibly swing the election.

Biden, who won Pennsylvania by more than 80,000 votes, now leads in enough other states to secure the presidency.

What follows is a synopsis of some of the highest profile cases in this strange post-election legal odyssey.

Pennsylvania

State Court Cases

Pennsylvania was the state that put Joe Biden over the top in the Electoral College. The President-elect’s margin of victory in the state is 80,810 votes.

The state first court case was Donald J Trump for President, Inc v. Kathy Boockvar and County Boards of Elections

The main issue in the case revolves around a guidance Boockvar issued, allowing voters to fix mail ballot ID issues by November 12, three days after the deadline under state law.

In Pennsylvania, voters can fix or “cure” minor issues with their ballots after election day, and county election boards take the effort to alert voters to these correctable issues seriously.

Boockvar’s guidance was in line with a three-day extension to mail ballot deadlines ordered by the Pennsylvania Supreme Court, a decision that is the subject of continued litigation at the U.S. Supreme Court.

The Trump campaign sued to prevent the counting of any mail ballots where the ID was cured in the extended period set out by Boockvar.

A state judge granted the campaign’s request, but the number of ballots affected are too small to affect the outcome of the race.

The second big state court case was: In re: Canvassing Observation

Think of this one as the COVID case. Votes in Philadelphia were counted at the Pennsylvania Convention Center, where local election officials imposed social-distancing rules to try to prevent the spread of the coronavirus.

The rules limited how close election observers could get to the poll workers as they counted ballots. Meanwhile, the count was also live-streamed to allow for virtual observation.

The Trump campaign sued for the right to stand as close as 6 feet away. A state trial court denied the request, but a state appeals court sided with the campaign.

Philadelphia appealed to the Pennsylvania Supreme Court. On Nov. 17, the state high court ruled against the Trump campaign.

The majority in the 5-2 decision found that Philadelphia complied with state election law. The two dissenters said the issue was moot.

Pennsylvania Chief Justice Thomas Saylor, one of the dissenters, criticized the idea that votes might be tossed out on the basis of the election observers issue.

“Short of demonstrated fraud, the notion that presumptively valid ballots cast by the Pennsylvania electorate would be disregarded based on isolated procedural irregularities that have been redressed — thus disenfranchising potentially thousands of voters — is misguided,” he wrote.

No one knows whether a single vote would have been changed had the outcome of the case been different.

The third case:  In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election.

In a sign that they were really, really, really trying to turn the tide in Pennsylvania, the Trump campaign then challenged the validity of 8,329 votes in Philadelphia through five cases in the state’s courts of common pleas, alleging that the mail ballots were unlawful because the voters had failed to write certain information on the envelopes, such as the date or their name and address.

All five of the cases were tossed on November 13.

The judge noted that “the pre-printed ballot already contains the elector’s name and address on the pre-printed exterior envelope” and said there was no requirement for voters to write the date.

The Trump campaign has appealed.

The fourth state case: Donald J. Trump for President v. Montgomery County Board of Elections

The Trump campaign also challenged the validity of 592 ballots in Montgomery County, on similar grounds to the Philadelphia case, alleging that ballots that did not have handwritten addresses on the envelope were invalid.

A state judge on November 13 rejected the lawsuit. The Trump campaign initially filed a notice of appeal but later withdrew it.

The fifth case: Donald J. Trump for President v. Bucks County Board of Elections

The Trump campaign challenged the validity of 2,177  ballots in Bucks County.

Both parties agreed to a stipulation that there was no fraud affecting any of the ballots. On November 19, a trial judge ruled against the campaign.

Federal court cases

Donald J Trump For President, Inc et al v. Boockvar et al

This is the case that Trump lost before Judge Brann and is now, as of this writing, in the hands of the 3rd Circuit.

As originally filed, the lawsuit raised a broad swath of alleged irregularities, so many that its main claim was that Pennsylvania’s entire election process was fundamentally unconstitutional.

As already mentioned, the case sought to prevent the state from certifying its results. At one point the Trump campaign told the court it wanted “the remedy of Trump being declared the winner” in Pennsylvania.

The lawsuit claimed that ballots were treated differently in different counties, that voters were improperly allowed to fix issues with defective ballots, and that large collections of mail ballots were unlawfully counted.

The case included claims about how close observers could stand to poll workers, and allegations from a Pennsylvania postal worker that his supervisor tampered with mail ballots. The worker walked back the claims when interviewed by United States Postal Service investigators.

On November 15, the Trump campaign amended its lawsuit, striking out its complaints about poll observers. Three days later, the campaign said it would put back those claims, telling the court they were “inadvertently deleted.”

Pennsylvania said the lawsuit was brought “on the basis of repeatedly rejected legal theories and no evidence.”

Two separate teams of lawyers representing the Trump campaign resigned from the case.

Rudy Giuliani, the former New York City mayor, then took over representing the Trump campaign in the case.

But the November 17 hearing before Judge Brann was something of an unmitigated disaster.

The hearing was the first time Giuliani had represented a client in federal court in almost three decades and it showed.

In short order, he forgot the name of an opposing lawyer, misstated the name of the presiding judge and mistook the meaning of the word “opacity.”

During several hours of arguments, Brann told Giuliani that agreeing with him would disenfranchise the more than 6.8 million Pennsylvanians who voted.

“Can you tell me how this result could possibly be justified?” Brann questioned. Giuliani responded, “The scope of the remedy is because of the scope of the injury.”

But most of Giuliani’s time in court was spent baselessly claiming that a wide-ranging scheme in Pennsylvania and elsewhere stole the election from Trump in battleground states won by Biden.

Democrats in control in major cities in those states — Giuliani name-checked Philadelphia, Pittsburgh, Atlanta, Las Vegas, Phoenix, Milwaukee and Detroit — prevented Republican observers from watching election workers process mail-in ballots so the workers could falsify enough ballots to ensure Trump lost, Giuliani claimed, without evidence to back it up.

“The best description of this situation is widespread, nationwide voter fraud, of which this is a part. … This is not an isolated case, this is a case that is repeated in at least 10 other jurisdictions,” Giuliani said, without citing any evidence.

Later, he claimed, “they stole the election.”

It was while on a break in this hearing that the Trump campaign learned the Pennsylvania Supreme Court had ruled Philadelphia officials had given Republican observers sufficient access to the vote counting, without allowing them within 6 feet.

The second federal lawsuit: Donald J Trump for President, Inc v. Philadelphia County Board of Elections.

While Pennsylvania was still tallying votes, the Trump campaign rushed into federal court seeking an emergency injunction to stop the count in Philadelphia.

It claimed its observers were not allowed to be present in the counting room.

At an expedited emergency hearing, however, the campaign’s lawyer admitted that, in fact, some of its observers were present.

“I’m sorry, then what’s your problem?” the judge asked.

The case was settled at the hearing with an agreement that Republicans and Democrats could have up to 60 observers each in the counting room.

All of this for 20 electoral votes.

Michigan

Michigan election officials certified Democrat Joe Biden’s 154,000-vote victory in the state on Monday.

The Board of State Canvassers, which has two Republicans and two Democrats, confirmed the results on a 3-0 vote with one abstention.

State court cases

Donald J Trump for President, Inc et al v. Jocelyn Benson

Under Michigan law, ballot drop boxes must be monitored by video surveillance cameras.

The Trump campaign sued to stop the counting of absentee ballots because it claimed that its observers had the right to view all video footage of the drop boxes before the ballots could be counted.

The lawsuit also included claims from a poll watcher who had heard from a poll worker that they had been told by other poll workers to change the dates on late ballots.

The judge denied the request to stop the count, calling the poll watcher’s claims “inadmissible hearsay within hearsay” and noting that the Trump campaign had not cited any Michigan law that required drop box video footage to be provided for review to election observers.

The Trump campaign appealed the ruling. The appeal was initially rejected because the filing did not follow Michigan judicial rules for appeals.

Federal court case

Donald J Trump for President, Inc et al v. Jocelyn Benson et al

The Trump campaign’s lawsuit alleged that Michigan state officials had allowed “fraud and incompetence to corrupt the conduct of the 2020 general election.”

It included more than 100 affidavits from Republican observers who claimed they witnessed election irregularities and were denied the chance to meaningfully observe the count.

Many of the allegations related to Wayne County, which includes Detroit.

The Democratic attorney general of Michigan, Dana Nessel, has called the case “baseless,”adding: “If I ever walked into court with claims this baseless and this frivolous, I would be sanctioned.”

On November 19, the Trump campaign voluntarily dismissed the case, effectively claiming it had won.

The move came after the Wayne County board of canvassers, which has two Republicans and two Democrats, two days earlier initially deadlocked on certifying the county’s votes before unanimously approving them.

The two Republican board members suggested in affidavits filed in the case that they wanted to rescind their votes to certify Wayne County’s results.

Nevada

Biden won the state of Nevada by 33,596 votes. The election inspired two federal court cases not brought by Trump, but by allies.

Stokke et al v. Cegavske et al

Two voters, a poll observer and elected officials, backed by the Trump campaign, claimed there were problems with an automated signature verification machine in Clark County, the largest in the state and the home to Las Vegas.

One of them, Jill Stokke, said at a Trump campaign news conference, “I went to vote and was told I already voted.”

The Clark County registrar of voters, Joe Gloria, investigated Stokke’s complaint and said that the signature on her absentee ballot appeared to match the one in the voter file, but gave her the option of challenging that vote and casting a provisional ballot.

Stokke refused.

U.S. District Judge Andrew Gordon tossed the lawsuit on Nov. 6 on the grounds the plaintiffs had no evidence to show that the signature-matching machines affected their ballot.

Jesse Law et al, as candidates for presidential electors on behalf of Donald J. Trump v. Judith Whitmer, et al, as candidates for presidential electors on behalf of Joseph R. Biden.

The Trump campaign filed a lawsuit targeting Nevada’s six presidential electors, who are planning to cast their votes for President-elect Joe Biden, including one woman who claims she’s a homeless military veteran.

The suit seeks to invalidate the state’s vote tally by claiming “substantial irregularities, improprieties and fraud” and naming the Biden-pledged electors individually as defendants.

One of them, Gabrielle d’Ayr, took to Twitter to criticize the claims by representatives of President Donald Trump.

“DJT continues his assault on the active duty & vets of Nevada by both attempting to invalidate their absentee votes, & now suing a homeless Navy Vet,” d’Ayr said in a tweet. “Enough is enough.”

“Once again, they are repeating allegations the courts have already rejected, misstating and misrepresenting evidence provided in those proceedings, and parroting erroneous allegations made by partisans without first-hand knowledge of the facts,” Clark County, Nevada spokesman Dan Kulin said in a statement.

Arizona

Donald J Trump for President, Inc et al vs. Katie Hobbs et al

The Trump campaign claimed that some ballots in Maricopa County were filled out with Sharpie pens.

A handful of voters and a poll observer said they saw bleeding ink on these ballots, causing an “overvote” on the other side, and that poll workers were instructed to press a green button on the scanner to accept the votes despite the error.

The suit sought to prevent the supposed “overvotes” from being included in the tally until they are reviewed.

The number of “over-votes” of any kind in the Arizona presidential race was 191.

At a hearing on Nov. 12, the lawyer representing the Trump campaign admitted that one of their witnesses was his business partner, and that they knew some of the witness affidavits the campaign had collected via an online form were effectively spam.

Asked during the hearing why she believed her vote was not counted, one witness answered, “I’m not sure.”

The Trump campaign dropped the suit because Arizona had finished counting its votes and the margin was far greater than the number of over-votes.

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