U.S. President Donald Trump turns away in the rain after laying a wreath at the Tomb of the Unknown Solider as he attends a Veterans Day observance. File picture: Reuters/Carlos Barria
U.S. President Donald Trump turns away in the rain after laying a wreath at the Tomb of the Unknown Solider as he attends a Veterans Day observance. File picture: Reuters/Carlos Barria

Donald Trump’s legal woes aren't getting better as he vows to win re-election bid in court

By The Washington Post Time of article published Nov 15, 2020

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By David A. Fahrenthold, Emma Brown, Hannah Knowles

Washington - President Donald Trump lost his reelection bid at the ballot box. But he said he could win it back in court.

In five key states, Trump and his allies filed lawsuits that - according to Trump - would reveal widespread electoral fraud, undo President-elect Joe Biden's victory, and give Trump another four years. "Biden did not win, he lost by a lot!" Trump tweeted.

It's not going well.

Rather than revealing widespread - or even isolated - fraud, the effort by Trump's legal team has so far done the opposite: It's affirmed the integrity of the election that Trump lost. Nearly every GOP challenge has been tossed out. Not a single vote has been overturned.

"The Trump legal team does not seem to have identified any kind of global litigation strategy that has any prospect of changing the outcome of the election, and all of the court filings to date underscore that - as do all of the court rulings that have been issued to date," said Robert Kelner, a Republican lawyer who chairs the election and political law practice group at Covington & Burling, an international law firm based in Washington.

Part of the problem is that Trump's approach has been backward: Declare crimes first, then look for proof afterward.

Again and again, the president or his allies said they'd found evidence that would stun the public and swing the election.

But, when Trump and his team revealed that evidence, it often was far less than they had promised. A "dead" voter turned out to be alive. "Thousands" of problematic ballots turned out to be one. Election-changing problems turned out to involve a few dozen, or a few hundred, ballots.

Some moments veered into the absurd, as the president's lawyers tried - and failed - to use Trump's reality-bending logic on baffled, unbending judges.

"Are your observers in the counting room?" Judge Paul Diamond asked Trump's lawyers in Pennsylvania at one point, in a case where Trump was seeking to stop the vote count in Philadelphia.

In that case, Trump's suit depended on the answer being "no." The logic for stopping the vote count was that GOP observers were not being allowed to watch it.

But the actual answer was "yes." The observers were there.

So Trump's lawyer tried an answer that wasn't yes or no.

"There's a nonzero number of people in the room," he responded.

That did not work.

Lawyers from two major firms have now backed out of helping Trump's efforts. Inside the White House, some officials have grown pessimistic about this legal effort, according to people who have spoken to them.

But officially, the Trump campaign has said it will fight on, despite its losses.

"Every state has different laws and therefore different legal approaches," said campaign spokesman Tim Murtaugh. "We are still determined to ensure that every legal vote is counted and every illegal vote is not."

The mismatch between Trump's rhetoric about voter fraud - and his ability to prove it - was particularly stark in Georgia.

There, Trump's campaign said last weekthis week that it had found the clearest possible evidence of fraud: A dead man had voted.

"Someone used the identity of James Blalock of Covington, Georgia to cast a ballot in last week's election, even though Blalock died in 2006," the campaign posted on its website, along with a screenshot of Blalock's obituary. It added: "These victims of voter fraud deserve justice."

Trump's campaign had one thing right. James Blalock is dead.

But it wasn't him who voted.

"I knew it wasn't fraud," said Mrs. James Blalock, a 96-year-old widow, in an interview with Atlanta's WXIA-TV on Friday.

Mrs. Blalock, whose first name is Agnes, had chosen to be listed on the voter rolls under her husband's name - which is now an uncommon practice but is legal. She told WXIA she'd voted for Biden: "I guess I voted against the other one, really."

Philip Johnson, chairman of the board of elections in Newton County, Ga., confirmed that account and called the allegations of Trump's campaign "shameful."

"I've been practicing law 46 years, and I believe that when you aim accusations or allegations, you should always have your facts straight," Johnson said. He is a former Democratic Party official, but his appointed position is officially nonpartisan. "It just bothers me that they weren't."

WXIA said it had found at least one other instance where one of Trump's "dead" voters was alive. There are a few remaining cases - including at least two in Nevada - where authorities are investigating whether someone did use a dead person's name to vote. But they say these were isolated cases and didn't amount to any kind of coordinated fraud.

The accusation about Mrs. Blalock wasn't Trump's only misfire in Georgia. In another case, Trump's campaign had filed a lawsuit saying that 53 late-arriving ballots in Savannah's Chatham County may have been backdated to appear valid.

But, when they called their witnesses, the witnesses admitted they didn't know that for sure. The local board of elections testified that the ballots arrived on time.

Judge James Bass dismissed the case in eight words: "I'm denying the request and dismissing the petition," he said from the bench.

In Nevada, Trump allies promised they had found problems on a huge scale. In news conferences, they said thousands of people - some having departed this life, others simply having departed Nevada - might have voted illegally.

They said there were reports of a van decked out in Biden/Harris logos, and carrying boxes of ballots that people were opening, filling out and sealing in envelopes

"Nevada is turning out to be a cesspool of Fake Votes," Trump tweeted last week,this week, promising that new revelations, once released, would be "absolutely shocking!"

But many of the "out of state" voters turned out to be military personnel, who are allowed to continue voting while outside Nevada.

And the lawsuit filed in federal court offered no evidence of widespread fraud. Instead of thousands of illegal votes, Republicans presented evidence about . . . one.

In the lawsuit, a woman said a thief had filled out and returned her mail ballot. When she showed up to vote in person, the woman said, she wasn't allowed.

County officials denied that. They said they had actually offered the woman a chance to vote in person, if she would sign an affidavit saying the mail-in ballot had been stolen. She had refused.

The Trump allies said this incident was still proof of a flawed system, because the woman could not vote in the normal way.

"I'm still having a hard time understanding your argument," Judge Andrew Gordon said.

He blocked Republicans' request for emergency changes in local voting procedures - but said they could return if they found more compelling evidence.

As of Friday, they had not.

Biden was winning the state by 34,000 votes. Trump's litigation had not changed that total - even by one.

In Arizona, the Trump camp's allegations of misconduct - and hope for an election miracle - centered at first on a conspiracy theory about Sharpie pens.

The president's allies alleged that when voters in Maricopa County used Sharpies to bubble in Arizona ballots, the voting machines could not properly read them.

"AZ update:apparently the use of sharpie pens in gop precincts is causing ballots to be invalidated," Trump ally Matt Schlapp, the head of the American Conservative Union, tweeted Nov. 4. "Could be huge numbers of mostly Trump supporters. More to come."

Trump's son Eric retweeted that, adding three siren emoji. Neither man explained how or why the Sharpie problem would have disproportionately affected Trump's supporters.

Voters backed by a conservative legal advocacy group filed suit, claiming that Sharpies had been "bleeding through" ballots and causing problems with their processing.

Then the Trump campaign, the Republican National Committee and the Arizona GOP stepped in with another argument. The suit said that machines had repeatedly detected "overvotes" - where people appear to have chosen multiple candidates in the same race - and that poll workers had pushed or encouraged voters to push a green button casting their ballot anyway.

No vote is counted in an overvoted race.

The lawsuit said that invalidated overvotes would "prove determinative" in Trump's bid for reelection and sought to block certification of Arizona's results until the ballots could be reviewed by hand.

But there was a problem. In all of Maricopa County, the total number of overvotes for president was 190. Biden is winning Arizona by about 10,000 votes.

"We're not alleging that anyone was stealing the election," said the Trump campaign's lawyer, Kory Langhofer, in a court hearing Thursday. Langhofer added later: "The allegation here is that, in what appears to be a limited number of cases, there were good faith errors in operating machines that should result in further review of certain ballots."

State and county election officials have said there is no truth to the rumors that ballots filled out with a Sharpie do not cause problems for the voting machines. "We looked into that. We were able to determine that did not affect anyone's vote," said Arizona Attorney General Mark Brnovich, a Republican.

On Friday, Langhofer officially gave up on claims that the Sharpie allegation could flip the result of the presidential election in Arizona, saying the point was moot because so few votes were affected.

"We continue to explore President Trump's options in Arizona," said Murtaugh, the Trump campaign spokesman.

As his legal hopes faded, the president on Thursday endorsed a new, baseless, conspiracy theory: that a company called Dominion Voting Systems had given thousands of his votes to Biden. Dominion Voting Systems operates in Arizona and other key states.

Later that day, Trump's own Department of Homeland Security released a statement rebutting his claim, though without naming Trump or Dominion directly. "The November 3rd election was the most secure in American history," said the statement from the federal Cybersecurity and Infrastructure Security Agency and its state and local partners. "There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised."

Brnovich, the Arizona attorney general, said the best piece of evidence that Maricopa County had run a fair election was the fact that the official who actually oversaw the voting - county recorder Adrian Fontes, a Democrat - had lost his own race.

"If indeed there was some great conspiracy, it apparently didn't work," Brnovich said.

In Michigan, Trump and Republican groups have filed five different lawsuits, all based on similar allegations: that officials in Detroit had miscounted ballots in a way that helped Biden. In one case, they didn't even get the filing right - lawyers somehow aimed at the Western District of Michigan but instead filed the case in an obscure federal court in Washington. Trump's team blamed a computer glitch.

The Michigan lawsuits relied on testimony from people inside the city's ballot-counting room - poll watchers, an IT contractor, and an election worker. The most voluminous of the lawsuits, filed in federal court, include more than 230 pages of sworn statements.

"Shocking allegations of voter irregularities revealed in 234 pages of signed and sworn affidavits," the Trump campaign wrote on Twitter.

But a closer look at the affidavits showed that many did not allege any wrongdoing with ballots. Instead, they showed poll challengers complaining about other things: a loud public-address system, mean looks from poll workers, and a Democratic poll watcher who said "Go back to the suburbs, Karen."

Some poll observers had become suspicious simply after seeing many ballots cast for Democrats - in Detroit, a heavily Democratic city where Biden won 94 percent of the vote. "I specifically noticed that every ballot I observed was cast for Joe Biden," one observer wrote. The Trump campaign filed that as evidence in court.

In other cases, poll challengers raised issues with procedures that election workers say were normal. Some, for instance, noted that workers input voters' birth dates as January 1, 1900. Election officials say that was a quirk of the computer system: It required workers to enter a voter's birth date at a step when they did not have access to that information, so they were told to enter a placeholder.

So far, Trump and his allies have faced a judge three times in Michigan.

All three times, it went poorly.

In one case, the plaintiffs relied on testimony from a poll worker, who was relaying what she'd been told by an unidentified election worker.

Judge Cynthia Stephens said that was hearsay. Inadmissible. The lawyer tried to argue.

" 'I heard somebody else say something,' " Stephens said. "Tell me why that's not hearsay. Come on, now."

Stephens ruled against the plaintiffs.

A few days later, Judge Timothy Kenny heard a similar argument from another group of Republican plaintiffs. He asked how well the Republican poll-watchers understood the procedures they were watching.

The city had conducted a "walk-through" for Republican poll-challengers in late October, long before the counting began, to show how the absentee ballot counting procedure worked.

Had the plaintiff's poll watchers been there, to learn about the process they were now objecting to?

No, the plaintiff's lawyer said. They had not known about it.

"Plaintiff's affiants did not have a full understanding of the [convention center] absentee ballot counting process," Kenny wrote in an opinion. "However, sinister, fraudulent motives were ascribed to the process and the City of Detroit. Plaintiff's interpretation of events is incorrect and not credible."

David Kallman, an attorney for the Republican poll-challengers, said afterward that he would appeal Kenny's decision to a higher court. He said there was still time to get a favorable ruling before Michigan is supposed to certify its statewide election results on Nov. 23.

"We've still got some time built in there," Kallman said. "Not a lot of time."

Pennsylvania was the state that put Biden over the top, and it has been the center of Trump's legal battles since Election Day. Trump has said on Twitter that Pennsylvania's fraud was so big that - if it were corrected - "based on our great Constitution, we win the State of Pennsylvania!"

In Pennsylvania's courts, however, Trump's legal team has produced no signs of fraud on that scale.

In fact, as his lawyers have bounced from loss to loss, they have often struggled to explain the logic of their own arguments.

In that Philadelphia case - where Trump's lawyer attempted to dodge a question by saying there was a "nonzero number" of GOP observers in a room - Judge Paul Diamond responded with another question.

"I'm asking you as a member of the bar of this court," Diamond said, invoking attorney's responsibility to be honest. "Are people representing the plaintiffs in the room?"

"Yes," the lawyer said.

"I'm sorry, then what's your problem?" Diamond asked. Trump's lawyers also wanted closer access for their observers in the room.

In another case, in state court, Trump's attorneys asked a judge to throw out 592 ballots because voters had made minor mistakes, such as failing to write their address on the outer envelope. In most cases, the address was already printed on a mailing label attached to the envelope.

What the judge wanted to know was: Why? Why was the Trump campaign focused on these ballots? What was the reason for throwing out people's votes, for a minor error?

"I am asking you a specific question, and I am looking for a specific answer," said Judge Richard Haaz. "Are you claiming that there is any fraud in connection with these 592 disputed ballots?"

"To my knowledge at present, no," Trump campaign attorney Jonathan Goldstein replied.

The Trump campaign has some broad, long-shot lawsuits still pending in Pennsylvania.

One seeks to have more than 680,000 votes in Democratic-leaning Philadelphia and Pittsburgh thrown out, on the basis that the campaign's observers were not allowed close enough to the counting process. That could swing the state's election, but it appears very unlikely to succeed.

Another seeks to throw out 10,000 ballots that arrived after Election Day, saying that an extension granted by the state was improper. That one may actually succeed, but it's unlikely to swing the election - Biden's lead is much bigger than 10,000, even if all those votes were his.

On Friday alone, Trump's campaign suffered six different defeats in state courts, as judges rejected their attempts to invalidate about 9,000 ballots for minor errors.

The Trump campaign has notched only minor successes in Pennsylvania courts.

On Thursday, a state court agreed with Trump's request to bar a small number of ballots where voters were late to provide missing proof of identification. Those ballots have not been counted yet.

That was a victory. But it only underscored the vast mismatch between Trump's actual legal strategy and the history-changing one he had promised.

Before that court's decision, Trump was losing Pennsylvania by 65,000 votes. Afterward, he was still losing Pennsylvania by 65,000 votes.

The Washington Post

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