By Michael Wilner
McClatchy Washington Bureau
WWR Article Summary (tl;dr) From Pennsylvania to Wisconsin to Nevada, lawyers are descending onto these critical swing states where attorneys are ready to litigate any ballot discrepancies.
Republicans are launching a legal onslaught on Pennsylvania’s election procedures to protect President Donald Trump’s narrowing lead in the state, a battleground he must win if he is to retain any chance of reelection.
The campaign announced Wednesday that it was filing a lawsuit to halt ballot counting in the state, and another on allegations that Republican poll observers were thwarted on Election Day.
They also said they will attempt for a third time to challenge a decision at the U.S. Supreme Court that allowed ballots received in the state after Election Day to be counted.
“The United States Constitution is clear on this issue: the legislature sets the time, place, and manner of elections in America, not state courts or executive officials,” Justin Clark, Trump’s deputy campaign manager, said in a statement.
“As the president has rightly said, the Supreme Court must resolve this crucial contested legal question, so President Trump’s Campaign is moving to intervene in the existing Supreme Court litigation over the Pennsylvania Supreme Court’s unlawful extension of the mail-in ballot receipt deadline,” he said.
Pennsylvania, which is still in play, allows ballots mailed by Election Day and received days afterward to be counted. Other states critical to the outcome, including Georgia, Michigan and Wisconsin, will only count ballots received by Nov. 3.
The Pennsylvania Supreme Court has upheld the practice, and the U.S. Supreme Court has deferred to the state’s high court on the matter.
Legal wrangling is expected in other states, as well.
In Wisconsin, legal teams with the Trump campaign and the Republican National Committee are searching for what they characterize as “irregularities” that could delegitimize a vote increasingly trending toward the Democratic nominee, former Vice President Joe Biden.
In Nevada, the Trump campaign tried challenging the state’s signature matching program — a last-ditch effort that was blocked in federal court.
And in Michigan, the campaign filed a lawsuit Wednesday asking for a halt to the vote, claiming that “numerous” vote counting locations denied their officials “meaningful access” to observe the opening of ballots, as guaranteed by Michigan law.
The Republicans are taking opposite legal approaches in states where counting late ballots may benefit Trump. While in the Midwest they are questioning the validity of certain types of ballots and trying to stop the count in some states, in the Sun Belt states that remain contested, they are insisting that votes still to be counted will put Trump in the lead.
Trump must hold onto his leads in Georgia, North Carolina and Pennsylvania in order to win the requisite 270 Electoral College votes. But that will not be enough. In addition to those three states, he will also need to add at least one other state still in contention such as Michigan or Nevada.
The Trump campaign’s vow to call for a recount in Wisconsin and its initial lawsuits in Pennsylvania and Michigan are just the opening salvos in a series of lawsuits expected in the coming hours and days challenging the ballot counting process in several states.
But it is likely that Pennsylvania will face the most challenges, given its laws and its status as a must-win state for Trump to retain any chance of reelection.
Pennsylvania officials said that millions of ballots have yet to be counted that were collected before the end of Election Day.
More ballots will continue to arrive through Friday evening, which the Pennsylvania Supreme Court has ruled is legal. Pennsylvania Secretary of State Kathy Boockvar said that those late-arrival ballots would be “segregated” from those that arrived on and before Nov. 3.
“We will make sure that every vote is counted, that every eligible voter has a right to cast their vote,” Boockvar said.
Republican challenges to the legitimacy of these late-arrival ballots in Pennsylvania have previously been rejected by the U.S. Supreme Court.
But Republicans plan to bring the case back to the court again — with a new, conservative justice, Amy Coney Barrett, now seated — if those votes become decisive to the outcome.
Alan Dershowitz, a prominent attorney who defended Trump in his Senate impeachment trial, told McClatchy in an email that the election could reach the Supreme Court if Trump challenges Pennsylvania’s late counting of mail-in votes.
“There is a path through Pennsylvania if Trump loses by a small margin,” Dershowitz said. “It all depends on the margin of victory in Pennsylvania — if Biden wins and whether that margin is made of late counted mail votes.”
In addition to challenging the late vote count, the Trump campaign also filed multiple lawsuits Wednesday that could have the effect of slowing the ballot counting process.
“We are suing to stop Democrat election officials from hiding the ballot counting and processing from our Republican poll observers — observers whose only job is to make sure every valid ballot is counted, and counted once,” Clark said. “In Philadelphia and elsewhere, Democrat officials forced our observers to stay 25 feet or more from the counting process, leaving no meaningful way whatsoever for our observers to do their jobs.”
The campaign is challenging Boockvar’s extension of a deadline for absentee and mail-in voters to show proof of identification. It is also suing “to temporarily halt counting until there is meaningful transparency and Republicans can ensure all counting is done above board and by the law,” Clark said.
Rudy Giuliani, a lawyer for the president, said that the count in Pennsylvania’s largest city — a count fueling Biden’s increasing margins in the state — was “illegitimate,” citing potential voter fraud without providing any evidence.
“While all of you thought there was some kind of legitimate count going on here in Philadelphia, it was totally illegitimate,” Giuliani told reporters in the Pennsylvania city. “We have no idea if they really are ballots. We have no idea if they’re signed, if they’re postmarked properly, if it isn’t just the same person who submitted 100,000 ballots. And they all got counted. This is how they intend to win.”
Biden expressed optimism that he would win the state.
“I feel very good about Pennsylvania,” Biden said. “Virtually all the remaining ballots to be counted were cast by mail, and we’ve been winning 78% of the votes by mail in Pennsylvania.”
The Trump campaign’s legal strategy in critical Southwestern states that remain within the president’s reach is the opposite of the approach in the Midwest.
Instead of questioning the legitimacy of late-arrival ballots and ballot counting procedures, the Trump team believes that their best chance of winning in either Nevada or Arizona is by counting ballots that arrived late in the process.
“We know that late-breaking mail helps us in Nevada,” Stepien said. “We believe that once all legal ballots are counted in Nevada, the president wins Nevada, and we believe by a margin of 5,500 votes.”
In Arizona, he added, the campaign hopes that late counted ballots will put Trump in the lead. “We know that a final batch of mail-in ballots is being counted — we know that the ballots are counted sequentially,” he said.
The contradictory legal arguments could work at the local and appellate levels, but could pose challenges to the Trump team if dueling cases reach the Supreme Court, legal analysts say.
On Wednesday evening, the Trump campaign and the Georgia Republican Party filed a lawsuit asking a court to require all Georgia counties to separate late-arriving ballots, claiming unverified incidents of fraud after the president fell within 1 percentage point of Biden in the state.