The Trump campaign’s latest legal challenge to the November 3 presidential election results may be a case of “too little, too late,” some legal experts say.
With the election over and former vice president Joe Biden projected as the winner, President Donald Trump faces an uphill battle in his push to overturn the results with scant evidence of fraudulent voting or improper vote counting.
That is the assessment of a number of legal experts after Trump’s reelection campaign filed a sweeping new lawsuit that challenges the legality of millions of mail-in ballots in Pennsylvania, a battleground state that was carried by Biden and put him over the top.
The Trump campaign’s 105-page complaint, filed in federal court in Philadelphia late Monday, advances an untested legal theory about voting by mail while rehashing previous arguments and offering little new evidence of fraud, the experts say.
The Trump lawyers’ apparent goal is to persuade the courts to discount the massive number of votes cast by mail, most of which were cast by Biden supporters.
The suit alleges that Pennsylvania’s use of disparate procedures for handling voting by mail and voting in person represents a “violation” of the U.S. Constitution’s Equal Protection Clause, and it asks for an injunction against certifying the state’s election results. U.S. states have different deadlines for certifying their results; Pennsylvania’s deadline is November 23.
Danielle Lang, co-director of the voting rights and redistricting program at Campaign Legal Center, said the new lawsuit is “more voluminous but not any more meritorious” than previous ones.
Voters in Pennsylvania had the choice between voting in person and voting by mail, Lang noted.
“It was always going to be the case that those different methods of voting would be accompanied by different procedures, but it doesn’t mean those procedures are less secure or less appropriate or less constitutional,” Lang said.
The lawsuit argues that of the approximately 6.75 million ballots cast in Pennsylvania, the 2.6 million that were sent by mail had fewer safeguards to ensure their transparency and verifiability. The majority of the mail ballots were cast by Biden supporters.
While the suit alleges that “almost every critical aspect” of the voting process in Pennsylvania was “shrouded in secrecy,” its core claim is that in-person voters and those voting by mail were treated differently.
“Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another,” the suit states, citing the Supreme Court’s ruling in the disputed 2000 presidential election between Republican George W. Bush and Democrat Al Gore.
In that case, the Supreme Court objected to Florida’s patchwork of standards for accepting and rejecting contested ballots, effectively bringing the Florida recount to a halt and giving the presidency to Bush.
But having different standards for voting by mail and voting in person does not constitute a violation of the Equal Protection Clause, said Richard L. Hasen, an election law expert at the University of California at Irvine.
“If this claim succeeded, it would mean that voting was unconstitutional across the entire country,” Hasen wrote in an email. “The claim is especially weak when voters had the choice to vote using either system.”
What is more, Hasen said, it may be too late for the Trump campaign, which has known about the Pennsylvania voting procedures for months, to bring a lawsuit now.
“Otherwise you give the campaign an option to sue over things only if they lose and disenfranchise voters who relied on the legality of the existing system,” Hasen wrote.
Election administration is a state matter, and legal experts say it is highly unlikely — but not out of the question — that the Supreme Court will get involved in resolving the dispute.
“Even if the Supreme Court gets involved, there doesn’t seem to be much chance of flipping enough votes to change the outcome of the presidential election,” said Michael R. Dimino, a law professor and election expert at Widener University Commonwealth Law School.
In the lead-up to the November 3 election, the Trump campaign and Republicans filed dozens of lawsuits against states’ plans to expand voting by mail during the deadly coronavirus pandemic.
President Trump repeatedly denounced the use of mail-in ballots, arguing with little proof that they were ripe for fraud. While Republicans were able to prevent some changes in voting procedures, most states went ahead with expanded voting by mail, eventually allowing more than 65 million Americans to cast ballots via the postal system.
Biden on Saturday was projected by news organizations as the winner on the strength of what is deemed an insurmountable vote lead in enough states to give him a majority in the Electoral College, or at least 270 electoral votes. The results remain subject to court challenges and recounts, and will not be official until certified by the individual states which must happen by December 8.
The challenge now facing the Trump legal team is that there may not be enough disputed ballots at stake to alter the election outcome, according to legal experts. Unlike in 2000, when former President George W. Bush won a disputed election by a few hundred ballots in Florida, Trump is running behind Biden by tens of thousands of votes in several battleground states, including Pennsylvania, Arizona, Georgia and Nevada.
Not all legal experts think the Trump lawsuit is without merit. Dimino said the lawsuit presents “some good arguments” that the vote count in Pennsylvania was not conducted in accordance with law.
For example, the complaint alleges that Republican vote-count observers were denied “meaningful access” — asserting that poll watchers were kept too far from the ballot counting in Philadelphia. In that case, a judge last week agreed with the Trump campaign and ordered that the watchers be moved closer, Dimino noted.
“And the campaign has other good claims that the administration of the election was at least questionable,” Dimino said. “So there is definitely a chance that the legal arguments will prevail.”
However, the most formidable challenge for the Trump team is “convincing judges that the election violations should result in discarding a large enough number of votes to alter the outcome,” Dimino said.
That would require evidence of systemic fraud and irregularities, something the Trump campaign has yet to produce.
Even if Pennsylvania’s 20 electoral ballots were given to Trump — a seemingly far-fetched scenario given his substantial disadvantage in the vote tally — the president would still need to win at least one additional state to reverse Biden’s projected victory.
In the week since the Nov. 3 election, the Trump campaign and the president’s supporters have filed lawsuits in four other states — Arizona, Georgia, Michigan and Nevada.
With a couple of notable exceptions, most of the legal action has failed, with judges either dismissing the suits or demanding tangible evidence.
In Michigan, the latest legal challenge to the vote-counting procedures came from a conservative group on Sunday. The lawsuit, filed by the Great Lakes Justice Law Center, seeks a new election in Wayne County — the Detroit area — alleging Tuesday’s election there was marred by fraud.
Tom Spencer, a veteran Republican lawyer who served as co-counsel on the Bush legal team during the Florida recount, said that despite the tough odds, Trump should pursue all available legal avenues.
“I remember the Gore lawyers in Florida saying you know, we have to do this not only for Gore but also for the American people so that they have confidence in the outcome and that they know that our client has turned every stone in order to make it,” said Spencer, now vice president of the Lawyers Democracy Fund.