Trump push to fight election uses courts in attempt to legitimize unfounded claims

Yet President Donald Trump persists. The President, with his Twitter account, still has his bully pulpit, with enough fervent followers to spread the word online and to rally. And the courts, by their very nature of being built around due process, provide Trump with a fair, relatively drawn-out avenue to test his claims — even if they ultimately go nowhere. A court filing, at the very least, adds the formality that a tweet doesn’t have.

“If it’s purely a question of who’s louder, the campaign — with a casual relationship with the truth — can take advantage of the mechanics of judicial proceedings to spin a narrative of how the proceedings are going,” said Steve Vladeck, a CNN legal analyst and law professor. “But only for so long.”

Take the campaign’s approach in Philadelphia late last week. On Election Day, the Trump campaign lost on a request to allow its poll watchers to stand close enough to see the writing on ballots. By Friday it had appealed to a state judge in Philadelphia, who said canvass observers should be able to stand within 6 feet of ballot processing, a ruling that gave the campaign just enough to say it had notched a major win over the vote count.

By Saturday, however, as CNN and other news outlets projected that Biden would win the presidency, Trump’s personal lawyer Rudy Giuliani wrongly claimed from the parking lot of a landscaping company in Philadelphia that no matter what was said in court, the Republicans had been shut out from watching the canvass — spinning a strand of hair into gold.

On Monday, the Pennsylvania Supreme Court, to which the city had appealed Trump’s “win,” said it would not stop the vote counting but would look at questions of state law in the case. Not a vote that’s been counted was changed or thrown out, nor could it be, through the lawsuit.

The Philadelphia case and others have allowed campaign spokespeople to continue to threaten that their filings could bear fruit. There’s always an appeal.

On Monday night, the Trump campaign brought a new lawsuit in federal court that seeks to stop the Pennsylvania secretary of state from certifying Biden’s win and the 20 electoral votes he’s set to receive there. Experts say the newest case is very unlikely to succeed, especially because it seeks to invalidate millions of votes cast in good faith in Pennsylvania.

“This is the sort of desperation, throw the kitchen sink at the wall and see what sticks strategy,” said Ben Ginsberg, a longtime Republican elections lawyer who’s a CNN analyst.

The new case, he said, appears to take a novel approach to contest Biden’s win — as “an attempt to bollox up the certification of results so there’s no winner declared, and that lets the Pennsylvania Legislature name the slate of electors,” Ginsberg said. He noted that if the complaint doesn’t fly in the trial court or federal court of appeals above it, the Trump campaign may try to push it to the newly conservative-strengthened US Supreme Court.

Only one case that’s already at the Supreme Court appears to raise questions of unsettled law, regarding whether votes that are cast before Election Day but received by elections authorities in the days afterward should be counted. Several states, including Pennsylvania, grappled with the issue before the election, with the Supreme Court declining to weigh in on the issue.

The Pennsylvania case still hangs at the Supreme Court now, making it possible that the state won’t ever count its 10,000 or so mail-in ballots that arrived after Election Day. Those ballots have been kept separate from the totals the state is reporting, making them apparently negligible to Biden’s win in the state.

As Pennsylvania, Republicans and Democrats all await what the Supreme Court will do with the issue, Tom Goldstein, an accomplished Supreme Court litigator who runs the website SCOTUSblog, has opined that if the Supreme Court steps in now, that likely will be read as political, with all legal nuance lost and Democrats and Republicans seeking to exploit the court’s moves to bolster their own views or to attack the court itself.

Fanning allegations of fraud

Unfounded claims of widespread voter fraud have also percolated over the past few days, partly because of the court activity over the weekend and the campaign’s efforts. Trump and his backers have focused on this idea in several states as he refuses to concede the election. The President has tweeted about his accusations so often that Twitter has flagged his tweets more than a dozen times as disputed or misleading. His campaign’s lawyers have tried unsuccessfully to take the claims to court.
Yet elections officials in states like Georgia and Nevada that have weathered some of the accusations say there are no such problems with the vote, and no evidence of fraud.
At the same time, the director of the federal government’s cybersecurity and infrastructure security agency declared that an idea spreading especially among right-wing commentators and online that computers had changed vote counts is a hoax.

A state court judge in Michigan took up one of the ballot processing accusations quickly last week. She determined that the sworn statement from the supposed witness was hearsay and therefore couldn’t be taken seriously in court.

“We’ve got an affidavit that is not firsthand knowledge!” Judge Cynthia Stephens exclaimed at a hearing before dismissing a Republican poll challenger’s accusation about a conversation that another election worker allegedly had overheard.

The Trump campaign has appealed Stephens’ decision. But the Michigan appellate court said the campaign hadn’t sent the proper documents. Republican lawyers said Monday that they were preparing for new challenges, though local media had already debunked claims of foul play in the election. In other states, Republicans gave up on some claims of the mishandling of ballots.
Rumors spread in Arizona — including in court filings — that votes were jeopardized because of the use of Sharpie pens to fill out ballots, but county, state and federal officials have said there’s no problem with using the pens.

The conversation around unproven voting irregularities has led to careful responses from some Republicans that have allowed Trump’s accusations to remain viable. Many are still walking the line between supporting Trump’s groundless claims and urging the need to find solid evidence for contesting the election.

On Monday night, Attorney General William Barr reminded US attorneys across the country to hold back on investigating accusations of fraud related to insignificant numbers of votes — yet greenlighted investigation into substantial allegations. He didn’t indicate in his memo that that type of substantial evidence exists, however.
Lawyers, too, cast doubts on Trump’s court strategy, especially on social media. A TikTok video from a blogger and trial lawyer in Chicago explaining that fraud allegations needed to meet a higher legal standard than other types of claims to have legs in federal court had gained 1 million views by Monday.
“Any lawyer would look at that and say, no, this is not going to be admissible ever. No lawyer would base an entire complaint around a document like this,” Joanne Molinaro, the lawyer and blogger, said about affidavits Republicans have touted alleging but not showing election fraud.

The legal community appeared to take heart in the possibility that judges could act swiftly to determine the truth and counter overblown claims.

“When the Trump campaign says we have all this evidence of voter fraud, the court of public opinion is ill suited to measure that evidence. A court of record is actually perfectly suited to measure that evidence,” Vladeck said, calling judges the “deflators of conspiracy balloons.”

But the actions of even the most skeptical judge can have a limited impression.

Except for rare circumstances, there are no audio and video recordings to capture scathing questioning by a judge of a Trump campaign or Republican lawyer, such as what happened in several hearings last week. In the Philadelphia ballot-observation case, the campaign lawyer admitted, when pressed by a Republican-appointed federal judge, that Trump’s supporters were in the room, able to watch ballot processing — contrary to what the campaign’s statements to the press have said.

Fix the Court, which has long advocated for cameras in the courtroom, said on Monday that it believed more public access to court could help counter the online disinformation.

The group, along with five major journalism advocacy groups, wrote to the administrative office of US courts on Election Day to ask for live conference lines or video streaming of hearings in election-related cases.

“The absence of live broadcast access to election-related court proceedings plays into the false narrative that something suspicious is afoot,” said Fix the Court’s executive director, Gabe Roth. “Instead of implementing policies like livestreaming that would bolster faith in our institutions during a tumultuous time, a broadcast- and modernity-averse judiciary is undermining its own work.”

For now, word of court developments comes in filing by filing.

The federal judiciary replied to Fix the Court’s request that it would respond shortly. But there’s been no decision yet.

CNN’s Jessica Schneider, Evan Perez and Alex Marquardt contributed to this report.

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