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Brennan Center: Why the election lawsuits will fail; there’s no evidence, just baseless accusations


By Myrna Perez
Brennan Center for Justice

Earlier, I wrote that the flurry of lawsuits filed by President Trump’s campaign were unlikely to have an impact on the election and laid out the reasons why. Since then, more lawsuits have been filed by the Trump campaign and other sympathizers, like the Republican National Committee and True the Vote.

In total, 31 such suits have been filed since Election Day thus far, 18 of them since my prior piece was published. These lawsuits are damaging notwithstanding their fatal flaws because they sow mistrust in the process.

Early cases primarily centered around poll watcher access and the processing and counting of absentee ballots, including challenges to ballots postmarked by Election Day but arriving within a specified timeframe thereafter. The newest batch of lawsuits can be roughly grouped into two categories: those related to the counting of individual ballots and those that challenge certification of a state’s presidential election results.

The first category primarily consists of cases seeking to prevent the counting of specific ballots for various reasons, such as voters forgetting to print their name next to their signature on the ballot envelope. Six such cases have been filed in the past week — five by the Trump campaign targeting Philadelphia County and one by a GOP state senatorial candidate targeting Allegheny County, Pennsylvania. The five Trump suits seek to throw out a total of 8,355 ballots in a state where Trump presently faces a deficit of more than 68,000 votes. A state court judge denied all five requests, and the Trump campaign promptly appealed.

A seventh case, based on the “Sharpiegate” conspiracy theory, challenged the alleged failure to count ballots that were supposedly unreadable by the electronic tabulation machines used in Maricopa County, Arizona. However, on Friday, the Trump campaign’s lawyers took the uncharacteristic step of formally conceding that the number of ballots in question was too small to change the outcome of the presidential election, effectively ending their case.

The second batch of cases asks to block certification and would be more alarming except they similarly are not credible. The plaintiffs seek to prevent the certification of an entire state’s election results unless outcomes from “certain counties” are excluded, making the stunning argument that every voter should be wholly disenfranchised based on vague suspicions of fraud and criminal misconduct by election officials. Each of those “certain counties,” of course, voted for President-Elect Joe Biden, and each has sizeable racial minority populations.

To be clear, these cases present no actual evidence of fraud or misconduct by voters or election officials. To the contrary, they merely rehash complaints that poll watchers were not given sufficient access and baselessly conjecture that mail voting is inherently susceptible to fraud and voter registration databases are outdated, therefore fraud must have occurred.

In the Wisconsin lawsuit, for example, the plaintiffs alleged there had been widespread “double votes, votes by non-registered persons, votes by persons who are deceased or moved out of state, and the like,” but had no proof. Instead, they wanted the court to make the state turn over sensitive voter records so that they could go on a fishing expedition. About an hour before a scheduled court conference on Monday, the Wisconsin plaintiffs voluntarily dismissed their case.

In Michigan, the Trump campaign attached 234 pages of poll watcher affidavits complaining about their experiences at the TCF Center in Detroit, many handwritten on notebook paper. One poll worker suspected fraud because a majority of the military ballots he viewed were cast for Biden, which conflicted with his belief that “military people tended to be conservative.” Another felt intimidated because some poll workers — including a “man of intimidating size” — wore Black Lives Matter T-shirts.

It’s hard to take these lawsuits seriously when the people responsible for them don’t even seem to. Without any evidence of fraud or misconduct, they are virtually guaranteed to go nowhere. The first of these certification challenges has already been denied by a circuit court and the Michigan Court of Appeals. On Monday, all four of the True the Vote-backed lawsuits were voluntarily dismissed. And tellingly, in Arizona and Pennsylvania, lawyers for the Trump campaign have dropped out of the very cases they had recently filed.

Despite the fact that these lawsuits have no chance of changing the election results, they are harming our democracy, improperly making our courts the center of what appears to be a bad-faith political fight. They exacerbate discord and delay acceptance by Trump’s supporters of the actual outcome of the election. And they besmirch the very election officials who worked and sacrificed to ensure that millions of Americans could safely vote — and have their votes counted — in the midst of a global pandemic.

The lawsuits are not a “Hail Mary” or final hope. They are a delaying tactic that will make it harder to reconcile and heal the divisions in this country. They are undermining faith in our systems and distracting from efforts to find sensible solutions to the ways in which our election processes actually do need to improve and change.

The path forward is to ignore the noise and disinformation and to keep focusing on our best values. The basis of American democracy is that we pick our leaders, not the other way around. And there’s nothing that frivolous lawsuits from any political candidate can do to change that.

Myrna Perez is Director of the Brennan Center’s Voting Rights and Elections Program. The Brennan Center for Justice, in New York City and Washington, D.C., is an independent, nonpartisan law and policy organization that works to reform, revitalize, and when necessary, defend our country’s systems of democracy and justice.  


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