PHILADELPHIA — The legal push by President Donald Trump to contest the results of the Nov. 3 election in Pennsylvania is on its last legs after a devastating week that delivered a string of courtroom losses and saw the sudden departure of the law firm leading up the fight.
While Trump’s campaign continues to pursue legal challenges, there is no active case left with enough ballots in question to reverse Joe Biden’s 69,000-vote advantage in the state as of Monday afternoon.
Trump campaign lawyers now say their goal isn’t to overturn Biden’s lead but to whittle his 1.01 percentage point lead down to 0.5 points and trigger an automatic recount.
And this week is likely to prove decisive in the one case on which the campaign has pinned its remaining hopes: a suit seeking a court order barring Pennsylvania from certifying its final vote tally.
It’s worth noting again that despite the outsized rhetoric from the president and his allies about widespread and systemic voter fraud, none of the suits his campaign has filed so far has contained even one allegation — let alone evidence — of a single vote being deliberately cast illegally. What’s more, campaign lawyers, when pressed by Pennsylvania judges in court, have consistently acknowledged that they are not alleging voter fraud but are instead seeking to disqualify ballots submitted by lawful voters based on legal technicalities.
So what cases is the campaign still fighting? And do any of them stand a chance of making headway? Here’s an overview:
— Certification of Election Results (federal court in Williamsport)
Filed Nov. 9 in federal court in Williamsport, this is the case on which the Trump campaign is pinning its greatest hopes of delegitimizing Pennsylvania’s final tally. Campaign lawyers have asked U.S. District Judge Matthew W. Brann to bar Kathy Boockvar, the state’s top election official, from certifying the election results, saying the entire process of casting and counting ballots was so opaque and riddled with inconsistencies from county to county that no one can trust the outcome.
But a ruling in a separate case Friday at the U.S. Court of Appeals for the 3rd Circuit appears to have gutted the legal arguments on which this case is based.
Originally filed last week by the campaign and two voters in Fayette and Lancaster counties, the suit argued that votes in GOP-leaning counties were diluted by the state’s inconsistently applied policies, which they claim unfairly favored Democrats.
But the 3rd Circuit panel ruled, in a case built on very similar arguments, that private citizens don’t have standing to sue, as long as all ballots in question were cast in accordance with state law and guidance issued by state elections officials.
Linda Kerns, Trump’s chief lawyer in the state, acknowledged the ruling delivered a significant blow to the Williamsport case and filed an amended version of the suit over the weekend that dropped many of its previous claims. The judge has scheduled hearings for this week, starting Tuesday.
The Trump campaign continues to press the case on one remaining issue: Its assertion that the GOP was unfairly disadvantaged because some Democrat-leaning counties, in accordance with guidance from Boockvar, notified voters if their mail ballots were in danger of being disqualified for defects like missing signatures or secrecy envelopes and allowed them to correct those mistakes or cast a ballot in-person on Election Day instead. Many Republican-leaning counties ignored the advice.
The campaign argues that Boockvar’s guidance was unlawful as the state election code does not spell out a process for fixing incorrectly submitted ballots — and in fact specifically forbids counties from opening any ballots before Election Day.
Elections officials in counties that did notify voters of errors have said they didn’t have to open the ballots to see that they were flawed. For instance, any ballot missing the voter’s signature on its outer envelope was immediately apparent. Some counties had advance sorting machines that enabled officials to tell by the weight of an unopened ballot whether it contained the required secrecy envelope.
Boockvar has argued that the nothing in state law prohibits counties from notifying voters about their flawed ballots and that she gave the same guidance encouraging such notification to all of Pennsylvania’s 67 counties. Those who chose not to follow it made that decision on their own.
If Brann were to rule in the Trump campaign’s favor and bar Boockvar from certifying the Pennsylvania’s final vote tally, it could throw the state’s election timeline into chaos. Pennsylvania’s results must be certified by Nov. 23 under state law.
But a wide array of Republican, Democrat and nonpartisan elections lawyers agree that this case appears to lack merit and it’s unlikely that even if the judge were to side with the campaign that he would take such a drastic step as barring the state from certifying its final tally just days before the deadline.
— Late-arriving mail ballots (U.S. Supreme Court)
The Trump campaign continues to hope that the U.S. Supreme Court will intervene in a case over whether Pennsylvania’s highest court improperly created a three-day grace period after Nov. 3 for mail ballots postmarked by Election Day to arrive and be counted.
Some of the court’s conservative justices have expressed an interest in the case, suggesting that the mid-September ruling by the Pennsylvania Supreme Court creating the deadline extension may have usurped the authority of the state Legislature to set the date, time and manner of elections. But the U.S. Supreme Court has taken no action since a Nov. 6 order mandating that counties segregate and keep separate tallies of votes that arrived within the extended deadline period.
The Trump campaign insists that the deadline extension was unlawful and that all mail ballots that came in during the three-day grace period should be thrown out.
Boockvar and the Democrats maintain that the extension was justified, given the widespread delays in mail delivery in Pennsylvania and across the country. They argue that the courts should defer to any solution that makes it easier for people to vote and for those votes to be counted.
With the state’s Nov. 23 certification deadline looming, the Supreme Court is running out of time if it wants to act. It’s possible the justices could decide to consider the matter for elections going forward but allow the late-arriving ballots to be counted this year, given that voters who sent them were following guidance from state elections officials.
Only 10,000 mail ballots statewide arrived between Nov. 3 and the end of the three-day grace period — far too few to reverse the outcome of the race in the state even if the court decided to disqualify them.
— Vote-count monitors in Philadelphia (Pennsylvania Supreme Court)
The Pennsylvania Supreme Court has agreed to hear the city of Philadelphia’s appeal of a Nov. 5 ruling from a lower court that ordered Trump campaign monitors be allowed within 6 feet of tables where votes were being counted at the Pennsylvania Convention Center.
What do the parties say? The Trump campaign maintains that its monitors were kept too far away to meaningfully observe the process. Even after the court order allowing them closer access, they maintain that the city never fully complied.
City elections administrators contend that Trump monitors were in the room the whole time and subjected to the same restrictions as Democratic observers. They note that state law only requires that monitors have access and does not specify how close they must be allowed to the votes being tallied.
This suit does not allege any ballots were improperly included in the city’s tally and a court ruling here would not affect the final results. Given that the Trump campaign won the earlier round of this fight, a campaign win at the Supreme Court would not change the status quo.
— Disputes over individual ballots (Common Pleas and Commonwealth courts)
The Trump campaign also continues to press a number of cases before county courts seeking to toss thousands of mail ballots for technical errors made by voters when submitting them. It lost the largest of those cases — contesting some 8,300 ballots in Philadelphia for deficiencies such as missing signatures or dates — on Friday but has appealed the ruling. Meanwhile, it is pursuing similar fights over 2,300 ballots in Allegheny County and 2,251 ballots in Bucks County.
Campaign lawyers have acknowledged that they are not claiming voter fraud in any of these suits and they agree that all of the contested ballots came from registered voters. However, they maintain that state law says mail ballots must be signed, dated and included in a secrecy envelope and that voters who forgot to take one of those steps should have their ballots disqualified.
Democrat lawyers have urged courts to err on the side of enfranchising voters if they made a good-faith effort to follow the instructions. Voting by mail, they say, shouldn’t be a game of “gotcha.”
The cases before courts at the moment involve roughly 12,800 ballots statewide — far too few to change the results of Pennsylvania’s election even if he were to win them all.
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