Since election day, Donald Trump and other Republicans have filed a smattering of lawsuits in battleground states that have provided cover for Trump and other Republicans to say that the election still remains unresolved.
Legal experts have noted these suits are meritless, and even if they were successful, would not be enough to overturn the election results. Indeed, judges in several of these lawsuits have already dismissed them, noting the Trump campaign has failed to offer evidence to substantiate allegations of fraud.
Here’s where some of the key lawsuits stand:
Pennsylvania
One of the main rallying cries for Trump and his supporters has been that they were not allowed to observe vote counting in Philadelphia, the overwhelmingly Democratic city that helped Biden carry Pennsylvania.
That’s not true. The Trump campaign did secure a court order to allow observers to get closer to the vote counting process, but there’s no evidence observers were excluded and Philadelphia had a 24/7 livestream of its counting. When the campaign went to federal court arguing that its observers didn’t have access to vote counting, a campaign lawyer was forced to admit there was a “non-zero” number of campaign observers watching the vote count.
Pennsylvania Republicans and the Trump campaign are also still pushing the US supreme court to reject mail-in ballots that were postmarked by election day and arrived at election offices by 6 November. Pennsylvania law requires ballots to arrive by the close of polls on election night, but the Pennsylvania supreme court, where Democrats have a majority, pointed to mail delays and the pandemic to justify the extension. Several other states in the US allow ballots to be counted if they arrive after election day but are postmarked before.
Republicans have been trying to get these ballots rejected since early September, when the Pennsylvania supreme court extended the receipt deadline by three days. The number of late-arriving ballots is thought to be relatively small, so even if the supreme court were to ultimately reject them, it would not be enough to overturn Biden’s lead of nearly 45,000 votes in the state.
Trump and Republicans have also pursued a number of cases to try and get courts to reject mail-in ballots where voters made a mistake, but have been unsuccessful in all of their suits. Even if Republicans succeeded, it wouldn’t be enough to overturn the results of the race.
On Monday evening, the Trump campaign filed another lawsuit in federal court offering a new legal theory – Pennsylvania’s election was illegitimate because it had different processes for voting by mail and voting in person. Many legal experts quickly noted the theory was bogus.
The suit was “inexcusably late”, said Stephen Vladeck, a law professor at the University of Texas, who noted the differences between in-person and mail-in voting were known for months.
“The core theory on which it rests – that there’s some kind of right to have all ballots counted through precisely the same procedures – would effectively invalidate mail-in voting not just in Pennsylvania, but nationwide,” he said. “Yet again, it offers no actual evidence of any impropriety or fraud in how Pennsylvania has counted these ballots. It’s just a transparent effort to throw out legal votes – or, at least, to muddy the waters long enough to prevent Pennsylvania from certifying its slate of electors in time.”
Arizona
The Trump campaign filed a lawsuit in Arizona on Saturday that seemed to be based on a discredited conspiracy theory that voters who used Sharpie pens to fill out their ballots would not have them counted.
The campaign’s suit didn’t specifically mention Sharpies, but contained allegations from voters who said they noticed ink had bled through their ballots, which could potentially cause their ballots not to count if the ballot scanners believed they had cast a vote for more than one candidate in a contest, something known as an overvote. The suit says that poll workers failed to avail voters of the opportunity to cast a new ballot when scanners notified them of the issue.
The Trump campaign submitted affidavits from two voters who said they were not notified of the chance to fix their ballots. A poll watcher submitted an affidavit saying he observed around 80 instances in which voters were given vague or confusing information about the possibility their vote could be rejected. He said he observed about 40 instances in which the poll worker had pressed the button to submit the ballot on behalf of the voter. Biden leads Trump in Arizona by more than 17,000 votes.
There’s no evidence in any of the affidavits of a poll worker submitting a ballot without the consent of a voter. Maricopa county officials denied last week that voters had their ballots rejected without being given a chance to fix any issues first.
“No ballots were rejected at voting centers for overvotes or any other reason,” Tom Liddy, an attorney representing the county, wrote to the state’s attorney general last week. “Voters who marked more votes than allowed (an ‘overvote’), made stray marks on their ballots, or otherwise damaged their ballots so they could not be read on vote tabulation machines were given the opportunity to ‘spoil’ their ballots and cast new ones.”
Even if a voter cast an overvoted ballot, it’s unlikely that it would have a significant effect in the presidential race. Tammy Patrick, a senior adviser at the Democracy Fund former election official in Maricopa county, noted that an overvote does not disqualify an entire ballot, only the race in which there is an issue. “All other contests and questions still count,” she said.
“The only way that over-voting would have affected the presidential race would be if a voter voted for both President Trump and Vice-President Biden (or more than one candidate in the race). This is very rare.”
A lawyer representing Maricopa county told a judge on Monday there were just 180 overvotes on the presidential line out of 155,860 cast in person on election day. He said it was “absurd” to think all of those 180 were not actually overvotes, according to the Arizona Republic.
Michigan
The Trump campaign has also been unable to offer substantial evidence of fraud or irregularities in Michigan, another important battleground state where Biden won by about 147,000 votes.
The Trump campaign tried to halt absentee ballot counting in the state, alleging that observers were excluded from the process, but a judge declined to do so last week. The campaign failed to “specify when, where, or by whom” they were excluded and did not “provide any details about why the alleged exclusion occurred,” Judge Cynthia Diane Stephens of the Michigan court of claims wrote. The campaign offered a picture of a sticky note from a poll worker purporting to show that workers were being instructed to backdate ballots – Stephens declined to admit the note, saying it was hearsay. The Trump campaign is appealing.
In another case, a judge rejected an effort last week to halt vote counting after Republicans claimed they were being excluded from a process in which election officials were fixing ballots that could not be read by scanners. The judge ruled against halting counting, saying that while the plaintiffs argued hundreds or thousands of ballots were potentially affected, they did not offer “affidavits or specific eyewitness evidence to substantiate their assertions”.
“It is mere speculation by plaintiffs that hundreds or thousands of ballots have, in fact, been changed and presumably falsified,” Judge Timothy Kenny, of Michigan’s third judicial circuit court, wrote in his opinion. “The city of Detroit should not be harmed when there is no evidence to support accusations of voter fraud.”
A new lawsuit was filed on Monday making similar allegations, but much of the evidence included in the case was based on hearsay, according to the Detroit Free Press.
Nevada
Nevada Republicans lost a lawsuit last week seeking to block Clark county, the state’s most populous and Democratic-leaning county, from using a machine to automatically verify the signature on ballots. Republicans put forward Jill Stokke, a 79-year-old legally blind woman, who claimed her ballot was stolen from her and submitted. But election officials said they had met with Stokke, reviewed her ballot, and determined the signature on it was hers, according to the Nevada Independent. They offered her the chance to cast a new ballot if she signed an affidavit, but she declined, the Independent reported.
US district judge Andrew Gordon said the plaintiffs had “little to no evidence” the machine was not working correctly, according to the Independent.
Nevada Republicans also announced last week they were sending a criminal referral to the justice department containing the names of thousands of people who had voted after moving out of the state. But there’s plenty of reasons someone may vote in Nevada from out of state – they might have moved temporarily, be at school or be in the military. Indeed, several of the addresses on the list are associated with the military, the Wall Street Journal reported Monday.
Georgia
In Georgia, the Trump campaign also lost an effort to disqualify 53 mail-in ballots it claimed were being counted even though they arrived after election day. But in court, the poll worker who the suit was based around failed to offer evidence the ballots had arrived late. A judge threw out the case last week after an hour-long hearing, noting there was no evidence the ballots were received after the deadline.
Because the margin in Georgia is within 0.5% of the votes case, there will be a recount of the vote in the coming weeks. While vote totals changing is not unusual for a recount, it’s not expected to change the expected result in the state, where Biden leads by more than 12,000 votes.