Where Trump’s Vote-Counting Challenges May Be Headed

(Bloomberg) -- Rather than concede the Nov. 3 election, President Donald Trump is attacking the integrity of U.S. voting and vote-counting, alleging without evidence that heavily Democratic cities in battleground states rigged the vote in favor of President-elect Joe Biden. Trump’s flurry of legal challenges face a tight calendar and, legal experts say, must overcome a high bar of proof.

1. Isn’t the election over?

Not officially. The Associated Press and U.S. television networks called the race for Biden on Nov. 7, a step that traditionally has led the losing candidate to concede and Americans to think of the election as over. But the process always continues for weeks after Election Day. States finish counting votes and then certify the results. That determines which electors are sent to the Electoral College, which convenes on Dec. 14 in state capitals for what normally is a mere rubber-stamping of the result that’s already clear. What’s complicating things this time is Trump’s lawsuits challenging the integrity of the election.

2. What do the lawsuits claim?

The most sweeping claims involve the work of so-called election observers. The Trump campaign says Republican observers weren’t given sufficient access to monitor the counting of mail-in ballots for fraud. Mailed ballots were used at unprecedented rates this year as people sought to avoid waiting on lines at the polls during a pandemic. In many battleground states, the mail-in vote heavily favored Biden, and the counting of those ballots in the hours and days after in-person voting ended reversed what had appeared to be leads held by Trump. In Pennsylvania, the Trump campaign alleges that Republican observers in the Democratic-leaning cities of Pittsburgh and Philadelphia were excluded from areas where mail-in ballots were tabulated or kept too far away to meaningfully watch.

3. What are observers?

Many states permit local Republican and Democratic parties to designate people who are allowed into polling places as observers to make sure voting goes smoothly and, in some places, even to challenge the eligibility of voters who show up in person to cast ballots. They “are deployed to do two things,” according to a summary by the National Conference of State Legislatures, “report to their party headquarters about who has voted and who still needs a ‘nudge’ to vote, and watch for any missteps in election processes. They’ve been in use for at least 100 years as a way to promote election integrity, with the idea that if both parties are watching, it’s much harder for either to tamper with the votes.”

4. Could Trump’s complaints change vote tallies?

Most legal experts say that’s highly unlikely. Trump’s campaign wants to disqualify hundreds of thousands, potentially millions, of mail-in ballots on the grounds that Republican observers weren’t allowed to witness their processing. As Trump’s lawyer, Rudy Giuliani, put it on Nov. 7, some polling places “conducted themselves in a way that suggests that there was fraud.” But legal experts say challenging results would require evidence of actual fraud, a significantly higher bar. “A court would not set aside the results of an election, or particular votes, based on violations of laws concerning observation of the counting process,” said Michael Morley, an assistant law professor at Florida State University who’s worked on election emergencies and post-election litigation. “Courts will not disturb election results based on unproven generalized claims about the theoretical possibility of fraud.” Agreed Edward Foley, a professor and director of an election-law program at Ohio State University, “I can’t conceive of invalidating ballots based on this claim of a procedural violation, even if proven.”

5. Is there precedent?

Federal courts, including the U.S. Supreme Court, have often stayed out of voting fraud cases, since elections are generally governed by state law. (The campaign’s attempt to sue in federal court in Philadelphia over its observation claims was tossed almost immediately on Nov. 5.) A handful of state-level contested elections through the years show the high bar for proof of fraud. Following a historically close election for governor of Washington state in 2004, more than 1,600 votes -- 10 times the razer-thin margin of victory -- were found to be invalid. Yet a state court judge declined to overturn the result, since there was no way to prove which candidate benefited from those improper votes. In a Pennsylvania case cited by some Trump supporters, a Democrat’s victory in a 1993 state Senate election in Philadelphia was overturned when a judge threw out all mail ballots. The judge cited “substantial evidence” presented at trial “establishing massive absentee ballot fraud, deception, intimidation, harassment and forgery.”

6. What if cases are unresolved before the Electoral College meets?

This gets into some of the more far-flung nightmare scenarios for U.S. political stability. In theory, the legislature in a state where vote counts are still being contested could choose to appoint electors other than those who were on the ballot for Biden -- but that would be a dramatic departure from the norm, and even Republican-controlled legislatures likely would think twice before going down that path. The Atlantic, citing sources in the Republican Party it didn’t name, reported that the Trump campaign was “discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority.” Republicans control both chambers of the legislatures in Pennsylvania, Arizona, Michigan and Wisconsin, where the Trump campaign has focused its allegations of vote-counting misbehavior.

The Reference Shelf

• QuickTakes explain the Electoral College and the “big blue shift” that turned the election for Biden.
• The National Conference of State Legislatures lists state-by-state policies for election observers.
• A Bloomberg Opinion editorial on “the hazardous path from here to the inauguration.”
• The Atlantic piece on “the election that could break America.”

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