Election 2020: What are the Trump legal claims?

The challenges so far are limited in scope and unlikely to produce large vote swings.

Mr Trump’s personal lawyer, Rudy Giuliani. Picture: Chris McGrath/Getty Images/AFP

President Trump and his allies have pledged to intensify legal efforts this week to contest the presidential election. Many of the lawsuits they have filed so far are limited in scope, making them unlikely to produce large vote swings even if successful.

Facing vote deficits in key states, Mr. Trump would need sweeping legal victories in all of them for any chance at closing the electoral gap with President-elect Joe Biden, who was declared the election’s winner on Saturday. The campaign over the weekend filed an additional lawsuit in Arizona and promised more elsewhere in the coming days. Judges in Georgia, Michigan and Nevada have already rejected its cases.

Three issues

Rudy Giuliani, one of Mr. Trump’s personal lawyers, said Sunday on Fox News that new legal claims would revolve around three issues: alleged barriers to observing the counting of mail-in ballots, alleged votes cast by the deceased and alleged backdated ballots. He didn’t offer evidence of wrongdoing beyond suggesting one lawsuit would focus on allegations from dozens of witnesses that Republicans were prevented from observing the counting of hundreds of thousands of ballots in Pennsylvania.

Republicans already have a suit alleging poll observers weren’t allowed close enough in Pennsylvania. State election officials say GOP watchers weren’t denied access.

Even if a judge sided with a claim that GOP poll watchers were treated unfairly, it’s unlikely any judge would invalidate election results without evidence of widespread ballot fraud, said Richard H. Pildes, a constitutional law professor at New York University.

No major conservative attorneys have stepped forward to lead the charge, standing in contrast to the legal teams that emerged 20 years ago for the fights over the presidential election in Florida. The 2000 election was about a few hundred votes in one state, while today’s conflict is over tens of thousands in at least four states.

The campaign on Friday named conservative activist David Bossie, who isn’t an attorney, to lead its postelection legal team.

Arizona

Some Trump advisers have privately said they see little path forward, politically or legally. A campaign spokesman didn’t respond to a request for comment.

The campaign’s Arizona lawsuit, filed Saturday, alleged that some votes cast on Election Day were incorrectly rejected in Maricopa County, home to Phoenix and more than half the state’s residents.

The suit, filed hours after Mr. Biden was declared the victor nationally, claimed that numerous voters were alerted by an electronic tabulation machine of irregularities with their ballots, potentially caused by stray markings, ink splotches or voter errors. Under state law, those people should have been given an opportunity to fix their ballot after the machine flagged problems. Some poll workers encouraged voters to override the error message causing each ballot to be cast with the defect, the lawsuit alleged.

Claims Arizona voters were pushed to use Sharpie pens on their ballots in a bid to make them unreadable and keep votes for Trump from being counted were rejected. Officials — including Arizona Secretary of State Katie Hobbs — said using a Sharpie would not invalidate ballots. Voters also had the option of bringing their own pens. Picture: Olivier Touron/AFP

A spokeswoman for Arizona Secretary of State Katie Hobbs, a Democrat, said the state was still reviewing the lawsuit. It appeared to be “a repackaged ‘Sharpiegate’ lawsuit,” she said, referring to state-court legal claims, since dropped, that voters’ use of Sharpie markers on ballots caused their votes not to be counted. Arizona Attorney General Mark Brnovich, a Republican, last week said the use of the markers didn’t result in voter disenfranchisement.

Pennsylvania

Mr. Giuliani suggested Sunday that the campaign legal strategy would focus first on the treatment of poll observers in Pennsylvania, especially in Philadelphia and Pittsburgh.

In the past, observers from both parties were allowed to examine poll workers closely, often standing over their shoulders to examine signatures and postmarks. This year, some local election officials implemented social-distancing rules because of the pandemic, keeping Republican and Democratic observers farther away from the workers. In Philadelphia’s convention center, for instance, some observers were kept behind a metal barrier 10 to 12 feet away from poll workers counting votes.

People celebrating the election victory of Joe Biden taunt Trump supporters while celebrating outside the Philadelphia Convention Center after Joe Biden was declared winner of the 2020 presidential election. Picture: Chris McGrath/Getty Images/AFP

A spokesman from the Philadelphia board of election said those barricades were moved up to within 6 feet of the first line of workers.

In a postelection legal win for Republicans, a state appeals court judge in Pennsylvania on Nov. 5 ruled that poll watchers must be allowed to closely observe the vote-counting process.

Poll observer allegations

The Trump campaign also filed a federal lawsuit alleging its poll observers weren’t permitted to observe vote counting in Philadelphia. A federal judge questioned the legitimacy of the campaign’s claims and dismissed the suit after the campaign and Philadelphia election officials reached an agreement over poll access during a hearing.

In other pending suits in the state, Republicans have argued that some mail-in and absentee ballots shouldn’t be counted because voters were allowed to either correct technical problems with their ballots or submit provisional replacement ballots. Some of these suits revolve around a few thousand ballots, making them unlikely to affect the outcome in a state where Mr. Biden now leads by about 41,000 votes with 99% of the expected vote counted.

Also pending is a Republican complaint at the Supreme Court challenging Pennsylvania’s three-day extension for accepting ballots postmarked by Election Day. But with Mr. Biden already ahead without the later-arriving ballots, the case could have little practical impact.

Old argument

Also not clear is which candidate those ballots benefited.

If the high court agrees to hear the case, Republicans would have to convince the court to accept a broad legal argument that the Pennsylvania Supreme Court didn’t have the authority to change the ballot deadline previously set by the state legislature. The legal theory underpinning that argument wasn’t embraced by a majority of the court in Bush v. Gore.