The presidential election has continued into overtime in the courts on multiple fronts as President Donald Trump declines to concede the contest to Democratic challenger Joe Biden.
Even as states kept counting ballots, no state had certified results, and lawsuits began to work their way through the courts, major media outlets announced four days after Election Day that the former vice president had won the presidency by exceeding the necessary 270 electoral votes.
Biden now leads by varying margins in Pennsylvania, Michigan, Georgia, Arizona, Nevada, and Wisconsin, most of which had showed Trump ahead on election night.
To explain what’s happening in the courts, here is an overview of the litigation and related election controversies in the most contentious states.
20 electoral votes
Vote spread: Biden leads Trump by about 63,000 votes.
—A Pennsylvania appeals court delivered a victory Thursday to the Trump campaign by blocking mail-in votes by anyone who didn’t provide required identification by the Nov. 9 deadline.
Pennsylvania Gov. Tom Wolf, a Democrat, sought to give voters who mailed in ballots more time to fulfill the ID requirement, beyond the deadline–a full six days after Election Day.
Shortly before the Nov. 3 election, Pennsylvania Secretary of State Kathy Boockvar, a Democrat who oversees elections in the state, pushed the date further back.
Commonwealth Court Judge Mary Hannah Leavitt ruled that Boockvar lacked the legal authority to change the date unilaterally. The votes were not yet included in Pennsylvania’s tally, where Biden leads Trump by more than 54,000 votes, or less than 1%.
The number of potential votes that wouldn’t be counted was unknown Thursday, but Philadelphia election officials said it was about 2,100 in the city, according to the Philadelphia Inquirer.
The Trump campaign’s chief legal counsel, Matt Morgan, said the pending lawsuits alone wouldn’t tilt the election outcome, but cumulatively could whittle Biden’s lead to 0.5%–triggering an automatic recount under Pennsylvania law.
The Trump campaign is suing in both Pennsylvania state court and in federal courts.
—Among the most high profile allegations has been that Republican monitors were kept too far away to be able to view election workers’ ballot counting in several counties. The Trump campaign asked a federal court to block certification of the vote until officials follow proper procedures. U.S. District Judge Matthew W. Brann is presiding over this case.
—In a lawsuit filed in U.S. District Court for the Middle District of Tennessee, the Trump campaign also asserts that Pennsylvania ran a “two-tiered” election system that favored mail-in ballots over in-person voting, held voters to different standards on whether their signatures checked against voter rolls; and allowed votes received three days after Election Day to be counted without evidence of timely mailing, such as a postmark.
The Trump campaign’s lawsuit alleges this violates the Constitution’s Equal Protection Clause and its Elections and Electors Clauses.
—In a separate lawsuit filed independently of the Trump campaign, the Thomas More Law Center’s Amistad Project filed a lawsuit alleging that Pennsylvania poll workers in heavily Democratic counties provided flawed mail-in ballots to Democratic campaign workers to contact voters about fixing their ballots. By state law, mail-in ballots must be set aside after receipt until the election is complete.
Boockvar, Pennsylvania’s secretary of state, authorized counties to do this at 8:38 p.m. Nov. 2. Former Kansas Attorney General Phillip Kline, director of the Amistad Project, said large metropolitan counties had an advantage in adjusting to this late notice that smaller rule counties didn’t. In other words, Kline said, blue counties had an advantage over red counties.
“They were activated,” Kline told The Daily Signal of political operatives in Pennsylvania.
Kline stressed that there is no rush as this and other litigation go forward. States have until Dec. 8 to certify electors. The Electoral College is set to meet Dec. 14, and Inauguration Day is Jan. 20, 2021.
“It’s important to hit the pause button. This is not a constitutional crisis,” Kline said. “We have to get this right. Election officials need to be accountable.”
—Three Pennsylvania counties–Bucks, Chester, and Delaware–reported inaccurate voter registration information to the federal government, Judicial Watch reported in October.
—More than 21,000 names on Pennsylvania’s voter registration rolls belong to voters who are dead, according to Public Interest Legal Foundation, an election integrity watchdog group.
This doesn’t mean all–or any–of those voters were recorded as having voted, only that Pennsylvania has been deficient in cleaning its voter rolls as required by the Help America Vote Act. Of the total number, at least 9,212 of those still listed as registered voters died in the past five years; at least 197 have been dead longer than 20 years.
16 electoral votes
Vote spread: Biden leads Trump by about 147,000 votes.
Michigan would be the most difficult state to flip, but the Trump campaign as well as independent groups and voters have raised several questions.
—Four Michigan voters filed a federal lawsuit alleging fraud and asking that election results be excluded from three counties.
The lawsuit calls for scrapping ballots cast in Wayne, Washtenaw, and Ingham counties. That reportedly would amount to 1.2 million votes.
Among issues in the Detroit-Wayne County area: Republican election observers could not see past cardboard put up to cover glass while workers counted votes.
One expert on the case is noted election lawyer James Bopp Jr., a former vice chairman of the Republican National Committee and former chief legal counsel for the National Right to Life Committee.
Bopp has been part of a legal team in several U.S. Supreme Court cases, including two major free speech cases–Citizens United v. Federal Election Commission and McCutcheon v. FEC. Bopp also has been a campaign adviser to Trump, 2012 Republican nominee Mitt Romney, and former President George W. Bush. He has teamed with Michigan lawyer Maxwell Gross.
The Michigan plaintiffs are Oakland County residents Lena Bally and Gavriel Grossbard; Eaton County resident Carol Hatch; and Jackson County resident Steven Butler, Michigan Live reported. Defendants include Michigan Gov. Gretchen Whitmer, a Democrat; members of the Michigan State Board of Canvassers; and members of similar boards in Wayne, Washtenaw, and Ingham counties.
The plaintiffs argue that “this evidence suffices to place in doubt the November 3 presidential election results in identified counties and/or the state as a whole.” The lawsuit, which notes that the plaintiffs will present a data analysis, also says:
Upon information and belief, the expert report will identify persons who cast votes illegally by casting multiple ballots, were deceased, had moved, or were otherwise not qualified to vote in the November 3 presidential election, along with evidence of illegal ballot stuffing, ballot harvesting, and other illegal voting.
The lawsuit contends that if illegal votes are counted, legal votes will be “diluted.”
—Separately, Thomas More Law Center’s Amistad Project filed a suit in Michigan to list firsthand eyewitnesses who say they saw Democratic election observers filling out new ballots for votes that machines couldn’t read. State law requires that observers from both parties agree on the intent of the voter before a ballot is marked.
“In Michigan, they are talking about the intent of the voter in counting the ballots and the law requires members of the Republican and Democratic parties to observe,” Kline told The Daily Signal.
—The Trump campaign filed a lawsuit in U.S. District Court for the Western District of Michigan that includes sworn affidavits from more than 100 individuals alleging misconduct in counting and processing ballots.
The lawsuit cites eyewitness claims under oath of fraud and intimidation, mostly from poll challengers who were observing counting at TCF Center in Detroit. This included examples such as seeing about 50 ballots being fed multiple times into a ballot scanner; seeing provisional ballots placed in a tabulation box;, and seeing ballots received after Election Day being backdated and counted.
“I witnessed election workers open ballots with Donald Trump votes and respond by rolling their eyes and showing it to other poll workers. I believe some of these ballots may not have been properly counted,” Republican poll challenger Artricia Bomer said of TCF Center in an affidavit, according to the Detroit Free Press.
Mordechai Mandelbaum, another Republican challenger at TCF Center testified that, 20 to 30 times, poll workers duplicated ballots “to incorrect precincts in order to run two ballots through for the same person.”
Another Republican poll challenger, Kristy Klamer, testified in a deposition that she witnessed at least 46 ballots processed for voters not in the database, and she specified precinct and ballot numbers for those ballots. Klamer said in the sworn deposition that election workers manually inputted information into the system for these ballots, including, in some cases, birthdates of Jan. 1, 1900.
Numerous other observers made assertions about backdating and back-timing.
However, Detroit Elections Director George Azzouz told CNN that “the date of January 1, 1900, is often used in the electronic poll book as a temporary placeholder for absentee ballots arriving just before Election Day.”
The lawsuit includes allegations from observers of backdating or backtiming of ballots. For Michigan, the deadline was 8 p.m. Election Day. Chris Thomas, a senior adviser to Detroit election officials, denied any backdating.
The Detroit Free Press reported that 134 Republican poll challengers were allowed into TCF Center.
—A separate lawsuit filed on behalf of two Detroit area residents claims that Wayne County election officials knowingly allowed illegal activities, including validating ballots when names on them weren’t in the voter database; ordering of election workers not to verify voter signatures on mail-in ballots; and counting of ballots that appeared after the deadline.
6 electoral votes
Vote spread: Biden leads Trump by more than 35,000 votes.
Of the six states in question, Nevada is the only one that Trump didn’t carry in 2016. He came close in 2020.
—The Trump campaign alleges that at least 3,000 out-of-state residents voted in Nevada. Lawyers with the campaign sent a list of suspect voter information to U.S. Attorney General William Barr, asking for a federal inquiry.
The lawyers’ letter to Barr reads in part:
Specifically, we have initially identified 3,062 individuals who appear to have improperly cast mail ballots in the election. We verified this by cross-referencing the names and addresses of voters with the National Change of Address database.
Of course, voter fraud is a serious federal felony, one that cuts to the heart of our representative democracy. We understand that these are serious allegations and we do not make them lightly.
The American Civil Liberties Union of Nevada countered that some of the names in question are those of members of the armed services who currently live outside the state.
—Clark County, home of Las Vegas and key to Biden’s victory in the state, had a voter registration rate of 102% of eligible voters, according to Judicial Watch.
16 electoral votes
Vote spread: Biden leads Trump by more than 14,000 votes.
—Georgia Secretary of State Brad Raffensperger announced that the state would conduct a hand recount of ballots in the presidential election.
“With the margin being so close, it will require a full by hand recount in each county,” Raffensperger, a Republican, said Wednesday. He added: “It will be an audit, a recount, and a recanvas all at once.”
The recount likely will be finished by Nov. 20, he said.
10 electoral votes
Vote spread: Biden leads Trump by about 20,000 votes.
In Wisconsin, the counties of Rock and Milwaukee are facing scrutiny.
—State Assembly Speaker Robin Vos, a Republican, called for an investigation by the Assembly Committee on Campaigns and Elections.
“If there’s real evidence of fraud, I want it to come forward to be able to be investigated. If there’s not, it validates the process and we should be fully supportive of it,” Vos said, according to the Journal Times newspaper, adding:
I would rather guarantee that everyone at the end of the day has certainty that the election was conducted fairly because we do a thorough investigation as opposed to trusting a bunch of bureaucrats in Madison saying, ‘Look, we did it just fine.’
Vos referred to absentee ballots from Milwaukee that were not reported until 4 a.m. Nov. 4, 21 hours after polls opened. Election workers can begin counting ballots after the polls open on Election Day in Wisconsin.
Vos also referred to the “inefficiency of Milwaukee’s central counting of absentee ballots.”
Milwaukee County Clerk George Christenson responded that the counting operation was “incredibly efficient in that it was able to count nearly 170,000 ballots in less than 24 hours.” Christenson noted that the law prohibits counting ballots until Election Day.
However, The Journal Times in Racine, Wisconsin, reported that election workers counted about 92% of the city of Madison’s 121,000 absentee ballots by 6 p.m. Election Day and the city of Racine reported all its returns a few hours before Milwaukee that finished at 4 a.m. on Nov. 4, the morning after Election Day.
—Other Republicans, including presidential sons Donald Trump Jr. and Eric Trump, raised questions about The Associated Press’ first calling Rock County for their father before the news service reversed the call.
11 electoral votes
Vote spread: Biden leads Trump by about 11,000 votes.
The Trump campaign dropped a lawsuit in Arizona that claimed Arizona poll workers “incorrectly rejected” votes cast in person on Election Day.
Trump campaign attorneys wrote late Thursday: “Since the close of yesterday’s hearing, the tabulation of votes statewide has rendered unnecessary a judicial ruling as to the presidential electors.”
Biden appeared to have flipped Arizona, a traditionally Republican state where the president had criticized two former GOP senators, Jeff Flake and the late John McCain.
However, Arizona Attorney General Mark Brnovich, a Republican, said Wednesday that correcting the irregularity likely would affect only 200 votes. “There is no evidence, there are no facts that would lead anyone to believe that the election results will change,” he said.