What is Happening With All These Election Cases Anyway?

Following election night, the Trump campaign (and other pro-Trump individuals and groups) has filed a number of suits challenging the validity of election results in several states. For non-lawyers all of these can be really hard to follow or understand. Compounding the problem is the fact that lawyers representing the plaintiffs in these cases frequently say one thing in court and another thing to the press.

So, what is actually being claimed in these cases? What’s the status of them? What does it all mean?

I hope to provide a little bit of clarity here for non-lawyers to better understand what on earth is going on. There are A LOT of these case so, I am going to limit this to the ones actually filed by the Trump campaign in the so-called “battleground” states.

GEORGIA

Case: In re: Enforcement of Election Laws

Who brought the case?: The Georgia Republican Party and the Trump Campaign

What court is it in?: Superior Court for Chatham County, Georgia

What they are claiming: That the Chatham County Board of Elections failed to safely store absentee ballots received after 7:00 p.m. November 3, 2020, leading to votes that were not received timely under state law being counted and “diluting” republican votes. These claims are based on the declaration of a poll worker who claims he witnessed absentee ballots that were not properly processed being added into ballots that had already been processed to be tabulated. Notably, he didn’t claim the ballots were not received timely, just that they didn’t follow the proper “chain of custody” procedure.

Are there claims of voter fraud?: No.

What plaintiffs want: An order from the court requiring Chatham County to properly segregate all absentee ballots received after the deadline.

Status of the case: Trump lost. The court found there was no evidence presented that the ballots in question were not timely received or that Chatham County was not following the law.

Other relevant information: States have different laws about how long after an election a mailed ballot can be received and counted. This is because states have deadlines for when an election must be certified. The votes have to be cut off at some point for states to be able to have a definite, certifiable result. States are allowed to decide for themselves when that time must be. In Georgia, ballots received after 7:00 p.m. on election day are segregated, held for a period, and later destroyed. In other words, ballots have to be in by 7:00 p.m. on election day to be counted. Trump’s campaign alleged that ballots received after this time (in ONE county) were not properly segregated and that *maybe* some of them got counted towards the official tally.

PENNSYLVANIA

Case: In re: Canvass of Absentee and Mail-In Ballots

Who brought the case?: Trump Campaign, the RNC, and PA republican candidates

What court is it in?: Court of Common Pleas, Bucks County, PA

What they are claiming: This case challenges the Bucks County Board of Elections decision to accept certain votes by mail (2,177 of them) that petitioners allege did not meet statutory requirements for mailed votes such as being placed in the proper envelope, containing a printed name/address, and/or including a complete date.

Are there claims of voter fraud?: No.

What plaintiffs want: The court to reverse the Board of Elections’ decision and not count the votes at issue.

Status of the case: Trump lost. The court found that the Board of Elections made the correct decision and that “there exists no evidence of any fraud, misconduct, or any impropriety with respect to the challenged ballots. There is nothing in the record and nothing alleged that would lead to the conclusion that any of the challenged ballots were submitted by someone not qualified or entitled to vote in this election. At no time did petitioners present evidence or argument to the contrary.”

Other relevant information: The court’s decision here was based on PA Supreme Court precedent that distinguishes between election codes that are “mandatory” and those that are “directory.” Basically, there is a difference between things voters have to do in order for their vote to be counted (mandatory) and things that they should do but will not result in their vote being excluded if they fail to do them (directory). The court, following the framework of this precedent, found that the parts of the code at issue were “directory” and not “mandatory” requirements. In other words, failure to follow these parts of the code did not justify the votes being thrown out. However, if a voter fails to follow a “directory” requirement and ALSO there is evidence of fraud, the vote can be thrown out. This is why it is significant that petitioners here did not even allege fraud. Had they been able to prove that some of these failures to follow “directory” parts of the elections code were done to perpetrate fraud, they may have gotten some votes tossed.

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Case: In re: Canvass of Absentee and Mail-In Ballots

Who brought the case?: Trump Campaign, the RNC, and PA republican candidates

What court is it in?: Court of Common Pleas, Montgomery County, PA

What they are claiming: This is basically a carbon copy of the Bucks County case. This time 592 ballots are at issue and it’s limited to ballots where the voter didn’t give their complete address on the envelope.

Are there claims of voter fraud?: No.

What plaintiffs want: The decision of the Board of Elections to be reversed and the vote not to be counted.

Status of the case: Trump lost. The petitioners initially filed an appeal, but promptly withdrew it.

Other relevant information: The court explained that the parts of the election code the petitioners claimed had been violated don’t actually require a voter to write their full address on the envelope (except where a voter is unable to sign due to disability or illness). If it held otherwise, it would basically be rewriting the relevant parts of the code.

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Case: Donald J. Trump for President v. Philadelphia County Board of Elections

Who brought the case?: Trump Campaign

What court is it in?: The Eastern District of Pennsylvania (federal court)

What they are claiming: That Philadelphia election officials are not allowing republican poll watchers to observe the ballot count. The complaint does not elaborate on these claims.

Are there claims of voter fraud?: No.

What plaintiffs want: An emergency injunction requiring that the vote count stop until poll watchers are allowed.

Status of the case: Denied due to an agreement between the parties.

Other relevant information: The order doesn’t give details about the “agreement,” but there has been reporting that even though the complaint alleged there weren’t any poll watchers present, the issue was actually that they were required to stand 20 feet away. This was changed to 6 feet. So, there were always poll watchers there, they were just not as close as they wanted to be. The poll watcher issue gets raised in other PA litigation as you will see below.

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Case: Donald J. Trump for President, et al v. Boockvar, et al.

Who brought the case?: Trump Campaign and RNC

What court is it in?: Commonwealth Court of Pennsylvania

What they are claiming: That the Secretary of the Commonwealth for Pennsylvania issued guidance instructing election officials to extend the deadline for voters to provide missing identification information for three days and that such guidance was incorrect.

Are there claims of voter fraud?: No.

What plaintiffs want: An injunction preventing election officials from giving voters an extra three days to supply missing identification.

Status of the case: Trump won.

Other relevant information: Before the election there was a court case that went to the PA Supreme Court in which the court extended the deadline for receipt of absentee ballots by three days. Some states allow voters time after the election to “cure” (correct) their mail-in ballots after they are received by election officials if certain information is missing (they forgot to sign it, forgot to fill something in, etc.). PA does not forbid such a process, but also does not require it resulting in some counties allowing an opportunity to cure and others not (more on this below). Secretary Boockvar interpreted the deadline extension for receipt of ballots as meaning that voters also got an additional three days to provide identification information to election officials if it was missing from their ballot submission. The court said that this interpretation was wrong and that the deadline for providing this information was not extended by the PA Supreme Court case.

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Case: In re: Pre-Canvass of Absentee and Mail-In Ballots

Who brought the case?: Trump Campaign

What court is it in?: Court of Common Pleas of Bucks County, PA

What they are claiming: That Bucks County election officials disclosed the identity of voters whose ballots had defects discovered during the pre-canvass before polls closed on November 3, 2020.

Are there claims of voter fraud?: No.

What plaintiffs want: An order from the court requiring that anyone attending the pre-canvass meeting not disclose voter information until the polls have closed.

Status of the case: I cannot find anything further after the filing of the petition, but the issue really doesn’t matter at this point anyway because the polls have long been closed and the information is now allowed to be released.

Other relevant information: Essentially what happened here is people who attend the pre-canvass meeting aren’t allowed to say anything to anyone outside the meeting about any specific voters who turned in ballots with defects (like the missing information at issue in the case above) until the polls have closed. The Trump campaign accused election workers of doing this but did not submit any proof of it. The concern here was that voters would be given this information before the polls closed and then given an opportunity to vote in person by provisional ballot.

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!!BUCKLE UP FOR THIS ONE!!

Case: Donald J. Trump for President, et al. v. Boockvar, et al.

Who brought the case?: Trump Campaign and a couple of PA voters

What court is it in?: Middle District of Pennsylvania (federal court)

What they are claiming: This one is fairly lengthy and convoluted. Plaintiffs initially claimed that election officials in PA didn’t do enough to safeguard against fraud in mail-in ballots and as a result voters’ rights to an election free of “taint or fraud” was violated, that voters in different counties were treated differently and that was unconstitutional, that they weren’t allowed poll watchers, and several other things. The claims were later pared down in an amended complaint. The two voter plaintiffs were voters who had their mail-in votes cancelled for not meeting statutory requirements (not following directions of how to submit their paper ballot, essentially). They complain that the fact that some counties adopted “cure” procedures while others did not was fundamentally unfair to them. The complaint and amended complaint are noticeably lacking in specific allegations and instead just state broadly that fraud probably happened on a large scale and that probably republican voters were treated unfairly as compared to democratic voters. As counsel for the state correctly pointed out, there are no allegations in the complaints of qualified voters voting more than once, qualified voters having their votes thrown out illegally, or people who were not qualified to vote casting votes illegally.

Are there claims of voter fraud?: Not exactly. They haven’t presented any proof of actual fraud or alleged any specific incidents, but think that the state didn’t do enough to prevent fraud and so allege there *might* have been fraud. But, all this fraud stuff becomes irrelevant due to the Plaintiffs cutting down their claims in the amended complaint.

What plaintiffs want: An order prohibiting officials from certifying the vote in PA, or, in the alternative, requiring certain absentee votes to be excluded from the final tabulation.

Status of the case: Trump lost. If you decide to read any of the decisions in any of these cases, this is the one. Just as a sample: “This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens. That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state.”

Of the two claims left in plaintiffs’ Amended Complaint, one was dismissed immediately for lack of standing based on another recent PA case (Bognet v. Secretary of the Commonwealth). Plaintiffs admitted that they lacked standing for this claim but said they left it in their Amended Complaint to preserve the issue for appeal.

So, the only claim left for the court to review was whether it was unconstitutional for PA to allow some counties to adopt “cure” provisions while others did not. Plaintiffs alleged that this practice violated “equal protection” which is a constitutional concept that prevents the government from treating two classes of similarly situated people differently (it’s a little more complicated than that but that is the basic idea). Unfortunately for plaintiffs there is some court precedent working against this claim and the court found that they had created a “Frankenstein’s monster” in trying to “mix-and-match” legal claims to try to get around legal precedent that was working against them. Basically, instead of presenting one whole claim, Plaintiffs took halves from two different claims and tried to stick them together. In order to still address Plaintiffs’ claims, the court had to treat it as two separate claims instead of the two-half claims stuck together that Plaintiffs’ pleaded. (I know this sounds weird, but this is essentially the judge trying to be very fair and give Plaintiffs every opportunity to present their case.)

The court found that the individual voter plaintiffs did not have standing on the issue of their votes being thrown out because they sued the wrong parties. They should have sued the counties that actually threw out their votes. They did sue *some* counties — but not the counties in which their votes were cast.

The court also found that the Trump Campaign did not have standing. This was, in part, because the campaign failed to explain in the complaint what their injury was. Pleading an injury (a specific harm to the plaintiff caused by the defendant) is a requirement to establish standing. Also, the campaign was trying to establish something called “associational standing” which is where some organization (like the ACLU, for example) brings a lawsuit to represent the interests of its members. But, there are certain things you have to prove to establish this type of standing and the Trump campaign did not establish these things. It tried to argue this type of standing in another recent case (Donald J. Trump for President, Inc. v. Cegavske) and also failed there. The Trump campaign also argued that it had something called “competitive standing,” but this involves a case where a political candidate’s rival is placed on the ballot even though they are ineligible to run for that office. So, it has nothing to do with this case at all.

The court also found that individual plaintiffs failed to state a claim (basically didn’t plead something that amounts to a violation of their rights) because the fact that some counties allow voters to “cure” their ballots doesn’t make it *harder* for plaintiffs to vote — it doesn’t place a burden on them. Because it does not make it harder for them to vote — doesn’t “burden” their voting rights — the court only has to review the state’s policy of allowing counties to adopt “cure” procedures at their discretion under a standard of review called “rational basis.” This is the least rigorous standard of review meaning it is the easiest standard for a government’s policy/action to survive when challenged. (The standard of review here was not, in fact, “the normal one” as Giuliani argued in court. Because that’s not even a thing, but I digress). Basically this puts the burden on the plaintiffs to prove that there was no possible rational reason for the state to have such a policy. Plaintiffs did not prove this. The court found that “it is perfectly rational for a state to provide counties discretion to notify voters that they may cure procedurally defective mail-in ballots. Though states may not discriminatorily sanction procedures that are likely to burden some persons’ right to vote more than others, they need not expand the right to vote in perfect uniformity. All Plaintiffs have alleged is that Secretary Boockvar allowed counties to choose whether or not they wished to use the notice-and-cure procedure. No county was forced to adopt notice-and-cure; each county made a choice to do so, or not. Because it is not irrational or arbitrary for a state to allow counties to expand the right to vote if they so choose, Individual Plaintiffs fail to state an equal-protection claim.”

The court also pointed out that even if plaintiffs had successfully stated a claim, the relief they were seeking (the invalidation of over 6 million votes) was WILDLY out of proportion to their alleged injury. The appropriate remedy here (if one were called for) would be to allow plaintiffs to “cure” their ballots so that they could be counted.

The Trump Campaign premised their equal protection claim on 1) poll watchers allegedly not being allowed to observe counts; and 2) the difference between counties with regard to “cure” provisions.

For the first part of the claim — an equal protection claim requires proof that you were treated differently than someone else. The Trump campaign did not allege this with regard to the poll watching issue. They did not allege that they were treated any differently than the Biden campaign. So, this part of the claim fails.

For the second part — the Trump campaign relied on the Bush v. Gore decision and the court basically said — to paraphrase Inigo Montoya — this case does not mean what you think it means. Like the individual plaintiffs, the campaign could not legally establish that the “cure” practices not being uniform across counties violated the law.

For all these reasons, the case was dismissed.

Other relevant information: Something very interesting and highly unusual about this case is that in a matter of days counsel representing the plaintiffs withdrew not once but TWICE — meaning the plaintiffs are on their THIRD set of attorneys on a case that was originally filed all of 13 days ago.

ARIZONA

Case: Donald J. Trump for President, et al. v. Hobbs, et al.

Who brought the case?: Trump Campaign, the RNC, and the AZ Republican Party

What court is it in?: Superior Court for Maricopa County, AZ

What they are claiming: This is the “sharpiegate” case you may have heard of. An individual AZ voter already brought and then voluntarily dismissed basically the same lawsuit. It is notable that the claims in this case are based on viral social media posts — not actual events. The claim is essentially that if a voter used a sharpie to fill out their ballot that their ballot got thrown out due to “ink bleed” causing the ballot to be considered an “overvote.” An “overvote” is where a person votes for more than one candidate for the same office (e.g.-voting for both Trump and Biden). The theory was essentially that a sharpie would bleed onto different parts of a ballot and make it appear to tabulation machines that more than one candidate was selected, resulting in the vote being thrown out.

Are there claims of voter fraud?: No.

What plaintiffs want: The court to order the state to review ballots that were rejected for overvotes due to ink bleed.

Status of the case: Plaintiffs filed a notice with the court that the case became moot and the court dismissed the case “with prejudice” which means the plaintiffs cannot re-file the case. Plaintiffs did this because not enough votes were at issue to change the result of the election. This fact really eats into the claims of the viral social media posts that poll workers were handing out sharpies to lots of voters to intentionally cause their votes to be rejected.

Other relevant information: At the hearing, the Trump campaign tried to submit hundreds of affidavits that were submitted online and couldn’t be authenticated because literally anyone could have filled them out. Trump’s counsel tried to argue that they were fine because they had used a CAPTCHA to weed out bots. However, they admitted that several of the affidavits contained false information or spam. State officials testified that the only instances of sharpie bleed affected down ballot races and not the presidential race. The state’s republican AG also testified that he found no evidence of voter disenfranchisement as a result of sharpie use.

MICHIGAN

Case: Donald J. Trump for President, et al. v. Benson, et al.

Who brought the case?: Trump Campaign and a group of Michigan voters

What court is it in?: Western District of Michigan (federal court)

What they are claiming: Plaintiffs claim that Wayne County (where Detroit is) prevented observers from watching ballots being counted and that they illegally back-dated absentee ballots that were not received on time so that they would be counted towards the total vote.

Are there claims of voter fraud?: No.

What plaintiffs want: An order from the court stopping the state from certifying the election until all the votes have been reviewed to make sure they were cast legally.

Status of the case: Plaintiffs voluntarily dismissed the case claiming that the Wayne County Board of Canvassers declined to certify the election even though that’s not actually what happened. After certifying the election results unanimously, two officials are now trying to “rescind” their vote, but there’s not actually a legal mechanism for them to do that. It’s a no-take-backs situation.

Other relevant information: Trump also persuaded the Republican leaders of the MI legislature to meet with him in DC to try to get their assistance in getting the certification in Wayne County rescinded. They refused to do so stating, “we have not yet been made aware of any information that would change the outcome of the election in Michigan and as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election.”

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Case: Donald J. Trump for President, et al. v. Benson

Who brought the case?: Trump Campaign and a Michigan election challenger (someone who observes votes being counted)

What court is it in?: Michigan Court of Claims

What they are claiming: That challengers were not being allowed to watch votes being counted. They support this with the claims of the challenger plaintiff that he was excluded from observing the vote tally. But he does not specify when or where this happened or who excluded him. Plaintiffs also claim that the state was required to allow observers to view the video surveillance footage taken at absentee ballot drop off boxes.

Are there claims of voter fraud?: No.

What plaintiffs want: The court to order the state to allow observers to watch ballots being counted and to order that counting be stopped until observers are in place.

Status of the case: Trump lost. In addition to the challenger plaintiff not providing any specifics about his alleged exclusion from the vote count, he also — like the PA plaintiffs above — sued the wrong person. The defendant here — the MI Secretary of State — is not alleged to have had anything to do with plaintiff’s alleged exclusion.

As to the claim about the surveillance video — only boxes installed after October 1, 2020 are required to be videoed. The plaintiffs didn’t identify any specific boxes they wished to observe the video of. Also, the law doesn’t actually require that challengers be able to watch the video.

Lastly, the plaintiffs waited too long to file their lawsuit (despite having a big press conference announcing it way before actually filing it) and by the time it was heard, the count was done and the court couldn’t issue them the relief they wanted.

Other relevant information: The plaintiffs also submitted an affidavit from a poll watcher claiming that she heard other polls workers saying they were changing the dates on ballots. First, this doesn’t actually relate to the claims of the lawsuit (seems to relate more to the other MI suit). Second, it is inadmissible as hearsay because it is the affiant saying she heard someone else say something. Third, these claims also have nothing to do with the conduct of the defendant, but with unidentified poll workers.

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WISCONSIN

Case: In re: 2020 Election for President of the United States

Who brought the case?: Trump Campaign

What court is it in?: It’s not a court case, but a petition sent to the Wisconsin Election Commission

What they are claiming: They are claiming that election clerks took unlawful actions, specifically: 1) adding addresses of witnesses that were missing from absentee ballots that were submitted; 2) sending absentee ballots to people who did not apply for them; 3) advising voters to claim to be “indefinitely confined” to avoid having to produce identification to vote; and 4) election observers in Milwaukee County were too far away from the count to adequately observe.

Are there claims of voter fraud?: Not specifically. They simply state that they “believe” that further investigation will reveal incidents of fraud but don’t explain why they think that.

What petitioners want: A recount of Dane County and Milwaukee County.

Status of the case: The recounts began November 21, 2020.

Other relevant information: Reportedly, the observers for the Trump campaign observing the recount are obstructing the process by objecting to every single ballot for any reason they can think of like ballots being folded.

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