If Donald Trump thought courts would rescue him in these contested states, his legal team’s first efforts should give him some second thoughts. The Washington Post’s Aaron Blake aggregated the initial rebukes from the judiciary, some of which has managed to bubble up to the mid-range of political consciousness over the last few days. The scope of the setbacks make it pretty clear, though, that their initial arguments for fraud were mainly hearsay and misunderstanding.
They started last week, and the setbacks continued right through today:
Even Trump allies, as The Washington Post reported late Tuesday, acknowledge the apparent futility of the effort. Others have reasoned that there’s no harm in going through the motions, with one anonymous GOP official asking, “What’s the downside for humoring him” for a little while?
But as scenes in courtrooms nationwide in recent days have shown, there is indeed a downside for those tasked with pursuing these claims. Repeatedly now, they have been rebuked by judges for how thin their arguments have been.
The most famous scene came in Pennsylvania, where a Trump lawyer strained to avoid acknowledging that their people were, in fact, allowed to observe the vote-counting process in Philadelphia[.]
The transcript from one of Trump’s legal challenges is fascinating. The judge trying to get to the bottom of whether they WERE allowed to have observers:
Judge : “Are your observers in the counting room?”
Trump lawyer: "There's a non-zero number of people in the room.” pic.twitter.com/CU4VbqIfj4
— Man vs Baby (@mattcoyney) November 6, 2020
His legal team didn’t prepare any better this week, Blake notes. When pressed whether they were alleging fraud in a case involving 592 ballots in Montgomery County, PA today, Trump’s legal team had to back down:
THE COURT: In your petition, which is right before me — and I read it several times — you don’t claim that any electors or the Board of the County were guilty of fraud, correct? That’s correct?
MR. GOLDSTEIN: Your Honor, accusing people of fraud is a pretty big step. And it is rare that I call somebody a liar, and I am not calling the Board of the DNC or anybody else involved in this a liar. Everybody is coming to this with good faith. The DNC is coming with good faith. We’re all just trying to get an election done. We think these were a mistake, but we think they are a fatal mistake, and these ballots ought not be counted.
THE COURT: I understand. I am asking you a specific question, and I am looking for a specific answer. Are you claiming that there is any fraud in connection with these 592 disputed ballots?
MR. GOLDSTEIN: To my knowledge at present, no.
THE COURT: Are you claiming that there or improper influence upon the elector to these 592 ballots?
MR. GOLDSTEIN: To my knowledge at present. no.
THE COURT: Does it make a difference whether a claim of irregularity or technical noncompliance with the election code is made with or without an accompanying claim of fraud or improper influence?
MR. GOLDSTEIN: It does not. I mean, to claim the technical defects are immaterial, which is in some sense some of the thrust of what the DNC argued, is really to misperceive what is going on in the election code. The election code is technical. These requirements are all technical. And some of them sit in that code for reasons that are a mystery for all of us. I mean, I sort of recounted for you my view of why the elector signing in his own hand is material. The DNC have their reasons for why they think it is material or immaterial. The fact of the matter is, it is in the code. The code is itself technical. Those technicalities are part and parcel of the law and a violation of the results in a ballot that can’t be counted.
Law and Crime’s Matt Naham summed up:
In summary, the Trump campaign appeared in court and they neither identified nor alleged any systemic fraud. The case focuses on 592 ballots that have not been counted in a county where the president is behind by 130,000 votes, and in a state where the president is behind by 46,000 votes.
That’s not an auspicious start. Remember that there is a significant legal issue in Pennsylvania involving a statutory ballot deadline, where ballots have been segregated for later resolution. But if they’re down to 592 ballots in dispute in a county where they trail by 130,000, one has to wonder why they’re bothering — especially when Trump’s legal team isn’t even alleging fraud.
Meanwhile in Michigan, the city of Detroit has responded to allegations of mishandling by explaining that the complainants don’t understand election law or procedures. This hasn’t been settled by the judge yet, but the responses to allegations of fraud make the complaints look pretty threadbare:
For example, the city says there was nothing fishy about using 1/1/1900 birthdates in pollbook entries because the system required the use of a birthdate and that's their standard placeholder. pic.twitter.com/NOPdHgOEZy
— Brad Heath (@bradheath) November 11, 2020
Actually, that's exactly what Detroit is saying: "Most of the objections raised in the submitted affidavits are grounded in an extraordinary failure to understand how elections function." pic.twitter.com/NccZ7ZOll9
— Brad Heath (@bradheath) November 11, 2020
Read the whole thread on this one. It bears watching, but it appears that this is more a collection of less-than-significant complaints over minutiae that is bundled together to look like something more substantial.
The predating issue was adjudicated in another Michigan lawsuit last Thursday … and it didn’t work out well for Team Trump:
But at a hearing Thursday, Michigan Court of Claims Judge Cynthia Stephens said the affidavit amounted to hearsay and questioned how it was relevant to the relief the Trump campaign was seeking, which related to access to ballot counting for poll watchers and a request to view videotape surveillance of ballot drop boxes installed around the state after Oct. 1.
Stephens denied those requests, saying Secretary of State Jocelyn Benson already issued a directive about access for poll watchers in a separate recent court case, the ballot counting is already finished, and that there is no legal basis for Benson to provide, or be expected to provide, access to video surveillance of ballot drop boxes installed by local election officials.
The judge ruled from the bench but said a written order dismissing the case would follow, likely on Friday.
Blake has the transcript of this discussion in court, in which Trump’s team tried to argue that it wasn’t hearsay. Their witness had never personally seen any illegal activity but had been told about it:
STEPHENS: I absolutely understand what the affiant says she heard someone say to her. But the truth of the matter … that you’re going for was that there was an illegal act occurring. Because other than that I don’t know what its relevancy is.
HEARNE: Right. I would say, Your Honor, in terms of the hearsay point, this is a firsthand factual statement made by Ms. Connarn, and she has made that statement based on her own firsthand physical evidence and knowledge —
STEPHENS: “I heard somebody else say something.” Tell me why that’s not hearsay. Come on, now.
HEARNE: Well it’s a firsthand statement of her physical –
STEPHENS: It’s an out-of-court statement offered where the truth of the matter is [at-issue], right?
After Stephens dismissed the case, Trump’s legal team moved for reconsideration. Unfortunately, their submission was “defective,” as it didn’t include the necessary supporting evidence:
And so, the Trump week in court begins….🙃 pic.twitter.com/Aa0ubPUaFW
— Marc E. Elias (@marceelias) November 9, 2020
Oof. Meanwhile, Trump’s legal team had a complaint dismissed in Georgia when their own cited witnesses didn’t substantiate their claims:
The day after filing a petition, the Trump campaign lost an election lawsuit in Georgia on Thursday after two witnesses called by Republicans admitted under oath that they did not know whether the challenged ballots were received on time. Two witnesses for Chatham County’s board of elections affirmed that the ballots were on time. …
The complaint also contained a sworn declaration by a poll watcher named Sean Pumphrey with a vague account about a stack of 53 ballots. He did not allege, and provided no evidence of, any impropriety.
Sabrina German, the director of Chatham County’s voter registration office, testified that this batch of ballots was received on time. None of them were double votes, she added.
Judge James Bass quickly dispatched the GOP petition in a one-sentence ruling without reciting his reasoning. A written order issued later was clear on the point that there was “no evidence” to support the plaintiffs’ claim.
So far, the best one can make out of this is that Team Trump’s legal squad have led off their efforts to fight fraud with obviously weak cases. In at least two instances, they’re not even alleging fraud in court while publicly framing the issue as such. Either Trump isn’t finding the best and brightest to add to his legal team, or they’re just not finding much evidence of widespread mishandling of the voting process, let alone fraud on the scale that would explain the election results.
There is still time to find and fight fraud on that level before states have to certify their election results. Perhaps filings in the next couple of days will offer more promising challenges. However, it’s very curious that Team Trump is leading off with such weak cases while claiming to have uncovered evidence of massive and systemic fraud. People should adjust their expectations accordingly, and maybe keep grains of salt handy.