Throughout Friday, the failures piled up.
In one day, nine cases meant to attack President-elect Joe Biden’s win in key states were denied or dropped, adding up to a brutal series of losses for the President, who’s already lost and refuses to let go. Many of the cases are built upon a foundational idea that absentee voting and slight mismanagement of elections invite widespread fraud, which is not proven and state leaders have overwhelming said did not happen in 2020.
“The Trump campaign keeps hoping it will find a judge that treats lawsuits like tweets,” said Justin Levitt, a Loyola Law School professor and elections law expert, on Friday. “Repeatedly, every person with a robe they’ve encountered has said, ‘I’m sorry, we do law here.'”
And yet, lawyers representing Trump, Republicans and voters unhappy with the election’s result forge ahead, as part of an increasingly desperate long-shot attempt to swing the Electoral College in Trump’s favor, no matter the popular vote and electoral count victory for Biden.
Appeals court rules
The writing is already on the wall for many of the election claims — and in some ways, already on paper.
The 3rd US Circuit Court of Appeals decided on Friday that the voters and a congressional candidate in Pennsylvania didn’t have the ability to sue and had gone to court too close to the election, rejecting their case.
The ruling on Friday also appears to block voters in Delaware, New Jersey and Pennsylvania — which the court oversees for federal cases — from making broad, theoretical claims under the Equal Protection Clause of the Constitution about the possible dilution of their votes.
“This conceptualization of vote dilution — state actors counting ballots in violation of state election law — is not a concrete harm under the Equal Protection Clause of the Fourteenth Amendment,” the court wrote. “Two voters could each have cast a mail-in ballot before Election Day at the same time, yet perhaps only one of their ballots arrived by 8:00 P.M. on Election Day, given USPS’s mail delivery process. It is passing strange to assume that one of these voters would be denied ‘equal protection of the laws’ were both votes counted.”
Lawyers representing Republicans in other weak suits since Election Day have tried to make similar constitutional arguments to block Biden’s win in states including Pennsylvania.
In one widely noticed case in Pennsylvania, the Trump campaign agreed on Friday night it could no longer push some of the constitutional claims it had wanted to make, nodding to the appeals court ruling from earlier that day.
Blocking the evidence
The campaign and others in the Pennsylvania case are set to appear on Tuesday and Thursday in a federal courtroom in Williamsport, Pennsylvania. There, Judge Matthew Brann, a longtime Republican, will hear arguments on a bold bid to block the state from certifying Pennsylvania’s election results — which could theoretically deprive Biden of his win in the state — because of supposed unfairness related to voting by absentee ballot. Brann also may hear witness testimony.
But even those attention-getting, trial-like efforts to have witnesses testify haven’t gone well for the Trump campaign. In a hearing in Arizona on Thursday that sought to block the certification of votes because of broad allegations of election mishaps, a judge wouldn’t consider some witness statements.
“Let me just clarify,” Judge Daniel Kiley said. “Your solicitation of witnesses yielded some sworn affidavits that you yourself clearly determined are false and spam, as you phrased it,” he asked the Trump attorney in court.
“The ones that you couldn’t prove are false you submitted to the court?” the judge said before granting the request of lawyers from Maricopa County to exclude the evidence.
A judge in Michigan on Friday also had a negative reaction to written statements from witnesses.
Judge Timothy Kenny in Wayne County, Michigan, pointed out how poll-watchers who had complaints in court about Detroit’s ballot processing hadn’t complained earlier or even attended election training where they could have raised questions about practices. He singled out an accusation from a Republican poll-watcher who conjectured that many votes for Biden meant there could have been ballot box-stuffing.
“It is not surprising that many of the votes being observed by [the witness] were votes cast for Mr. Biden in light of the fact that former Vice President Biden received approximately 220,000 more votes than President Trump,” Kenny wrote.
Trump and his supporters still seek to block the certification of Biden’s win in Wisconsin, Michigan and Pennsylvania through a patchwork of cases.
One of the latest iterations of these cases comes from a group of voters in Wisconsin. The lawsuit argues that election results in areas Biden won should be invalidated across the state because a data analysis might show some ballots, especially absentee, should not have been counted.
But the lawsuit offers no evidence or even sworn witness statements to back up its assertion that Wisconsin had illegal votes.
In fact, the voters who believe their votes were diluted unfairly admit they have not proven their claims at this time.
“This evidence will be shortly forthcoming when the relevant documents are final and available,” the lawsuit promises.