Weeks into its post-election litigation, as it has urged swing state Republicans not to certify the results, the Trump campaign's strategy is an upside-down version of those Texas gambits — subtracting votes, instead of adding them. States finish their counts. Joe Biden's total lead gets calculated. The lawsuits then target enough ballots to erase that lead and put Trump ahead.
“It appears the strategy in each case is to identify the level of disenfranchisement needed to change a particular outcome, and to correspondingly enable a court to award relief, then fashion an argument elastic enough to reach that level,” said Cris Hoel, a Pittsburgh-area attorney who has handled election law cases.
The president hasn't argued otherwise. He has lost every legal challenge to count ballots that weren't contested before Nov. 3. (Two victories, in Pennsylvania, have dealt with ballots that were set aside before the canvass and don't affect the count.) His evidence of “fraud” has veered from misinformation, such as insisting that big caches of votes for Joe Biden are inherently suspicious, to incompetence, such as affidavits from poll watchers who didn't know what they were doing.
In September, Trump speculated that he'd win easily if states could “get rid” of mail ballots that are more secure than anything Lyndon Johnson had to work with. (There were no bar codes or signature-matching laws in 1941.) In post-election tweets, Trump has repeatedly said that he can “flip” states won by Biden by getting ballots thrown out.
“Can’t accept the results of an election with hundreds of thousands of fraudulent votes cast, enough to easily flip the Election,” Trump tweeted Saturday, chastising Republican Rep. Liz Cheney of Wyoming after she became the first member of the party's House leadership to suggest that he lost to Biden.
After every election, there are lawsuits, recount requests and ballots not counted initially but found in the official canvass. That was what happened in Georgia's hand recount and audit, with thousands of ballots discovered and Trump winning more of them than Biden. The bitterest modern election battles before this year involved candidates who'd come up short suing to get more ballots counted.
Courts have often allowed that. To Trump's dismay, they've been more skeptical about throwing away ballots, risking mass disenfranchisement over specious fraud allegations. On Saturday, the Trump team absorbed one of its hardest blows, when a conservative district judge in Pennsylvania dismissed a case that presidential fixer Rudolph W. Giuliani had argued in person, with Judge Matthew W. Brann, decrying the “drastic remedy” being asked for: tearing up ballots from “almost seven million voters.”
How many votes are we really talking about? There have been dozens of lawsuits, some brought by the Trump campaign itself, some by political allies and some by zealous supporters. Some of their challenges overlap, too, with some complaints asking for subsets of ballots to be disqualified and some asking for county- or statewide disenfranchisement.
For simplicity's sake, this is a list of all the ballots being questioned by Trump allies in court in recount forms. Conspiracy theories about ghostly Venezuelan dictators aren't relevant here; the text being put in front of judges is. The Trump campaign would need to void more than 100,000 votes across at least three states to do what the president is asking and overturn the election, but the total number of votes being challenged is north of 5.2 million. Here they are, in descending order:
Pennsylvania: 2,615,045 votes. Biden's lead in the state of his birth is 81,470 votes, and several lawsuits or challenges have been introduced to overturn it, including one that takes aim at all mail ballots. In its response to Brann's decision, the Trump campaign referred to “682,777 ballots being cast illegally” in Pennsylvania, a number based on how many votes it insists that Republican observers could not witness being counted. In reality, Republican and Democratic observers were present at every count.
The Voter Integrity Fund, created by Trump campaign veteran Matt Braynard to hunt for fraud, has not introduced a lawsuit. But it has worked with a mathematician to allege that “89,397 to 98,801” absentee ballots from registered Republicans were either cast and not counted, or requested by some fraudster who voted in their name. The VIF conducted 1,019 interviews with registered Republicans who claimed that they didn't get an absentee ballot or didn't remember using one; the mathematician extrapolated to a number high enough to erase Biden's lead. According to the state, Democrats returned their absentee ballots at a slightly higher rate than Republicans, but any voter was able to “spoil” their ballots and vote in person, as Trump encouraged Republicans to do.
But the total number of absentee ballots cleared 2.6 million, and a lawsuit filed at 4 a.m. on Saturday argues that Pennsylvania's 2019 law expanding access to the absentee process violated the state constitution, which has not yet been amended to remove old language limiting absentee voting to people who meet certain hardship conditions.
The plaintiffs, who include Rep. Mike Kelly and unsuccessful congressional candidate Sean Parnell, argue that mail votes cast under the current system were illegal and that the state should “certify the results of the election based solely on the legal votes or, alternatively, directs that the Pennsylvania General Assembly chose Pennsylvania’s electors.” Because of the secret ballot, there's no way to determine which voters would have been eligible to request absentee votes before and after the 2019 law was passed. Voiding all mail ballots would wipe out nearly 38 percent of all votes cast in the state this year, not only handing the state to Trump but also the congressional race to Parnell.
Georgia: 1,320,154 votes. That's the total number of absentee ballots cast in the state this year, and a lawsuit brought by conservative legal gadfly L. Lin Wood raised questions about most of them. His argument, dismissed quickly by a district court, was that Secretary of State Brad Raffensperger had no constitutional authority to relax the state's absentee ballot rules and that the state unlawfully allowed “tabulation of defective absentee ballots, regardless of whether said ballots were cured.” (A voter who learns that there was an error with his or her ballot gets a grace period to “cure” it and get it counted.)
Wood did not represent the Trump campaign with that lawsuit. But on Saturday, the Trump campaign asked for a recount of the presidential race, which the state must pay for, making the perplexing demand that it “include signature matching.” That's not possible: Every ballot accepted in the first count met the state's signature-match standard or was cured by a voter afterward. With the absentee ballots' envelopes removed, there is no way for a Republican election auditor to question the “match.” And without that information, the only way to disqualify some absentee ballots would be to disqualify them all.
Michigan: 872,383 votes. That's the post-canvass total from Wayne County, the state's biggest population center and largest source of Democratic votes, thanks to the city of Detroit. The goal of the president, local Republicans and unsuccessful GOP Senate nominee John James has been to block certification of the statewide vote until there's an audit in Wayne County. James, who lost to Democratic Sen. Gary Peters by 96,739 votes, argued that the discrepancies on poll books threw the results into doubt, “and these problems need to be fixed so no legal voters are disenfranchised.”
The poll book issue, often cited by Republicans, is misleading. Like James in his complaint, they tend to focus on the percentage of poll books where the number of voters checked off by poll workers did not exactly match the number of votes cast. That happens in every election, and the total number of mismatches is around 400, too few to alter any results on Tuesday. State GOP Chair Laura Cox and RNC Chair Ronna McDaniel have written in support of James's complaint, but at his disastrous news conference on Thursday, Giuliani went a bit further.
“You see a change in the results in Michigan if you take out Wayne County,” Giuliani said.
Taking out Wayne entirely would, indeed, obviate Biden's winning margin. It would subtract 332,617 more votes from his total than from Trump's total; in the Senate race, it would subtract 322,221 more votes from Democratic Sen. Gary Peters than from James. It would also erase all the votes in Rep. Rashida Tlaib's 13th Congressional District and unseat Rep. Haley Stevens, a fellow Democrat, who won the Wayne County portion of her 11th District but lost the rest. That sort of mass disqualification of a disproportionately Black electorate is unprecedented, and McDaniel et. al. have asked to slow-walk the certification, not to prevent it outright. But it's what the president's attorney suggested should happen.
Wisconsin: 401,561 votes. That's not the total number of votes cast in Dane County and Milwaukee County, the liberal strongholds where the Trump campaign is paying for recounts. (Before you Google: 803,762 votes.) In its request for a recount, the Trump campaign raises questions about more than 200,000 votes, based on absentees cast by voters who did not fill out a “written application” for them, and absentees cast by voters who claimed to be “indefinitely confined” yet may have been able to vote in person. Their petition pegs the number of questionable absentee voters in Milwaukee County at “more than 60,000” and notes that the number of voters claiming to be “indefinitely confined” in Dane County rose from around 72,000 before the pandemic to 240,000 by Nov. 3.
But the total number of absentee votes in each county is above 400,000, and the first days of the recount have seen Republicans challenging absentees for all sorts of reasons. According to the Milwaukee Journal Sentinel, Republicans have objected to the entire absentee ballot pools from some city wards; to any absentee ballots that were folded, which was nearly all of them; and to ballots in piles that seem too large and unwieldy. Around 178,000 voters, across both counties, delivered their absentee ballots in person; the GOP's premise is that these voters were encouraged to vote illegally by election clerks who allowed the practice and that the ballots should be tossed.
So far, very few of the in-person challenges are succeeding, in part because Republicans are targeting voter behavior that local officials signed off on. With Biden's margin at 20,565 votes, challenges to around 5 percent of all absentee ballots would form the basis for a lawsuit, arguing that the county boards were wrong and a court should come in to correct them. The recounts, which began Friday, could theoretically drag past the state's Dec. 1 certification deadline. Democrats don't think it will take that long and instead expect Republicans to come out of the process arguing that there are simply too many questions about the ballots to certify the vote.
Nevada: 40,000 votes. The GOP's challenges in Nevada are simultaneously their most optimistic and their least specific. The optimism comes from Clark County's decision to void an election for a commission seat where there were 153,162 ballots cast, 139 discrepancies in the finished count, and a 10-vote gap between candidates. That has given hope to several candidates who lost Nov. 3, arguing that their elections can be redone, too, on the theory that a scouring of the votes will turn up enough to challenge the winning candidate's margin.
Doing that in Nevada, for Trump, would mean challenging or voiding more than 33,596 ballots — Biden's margin of victory. A lawsuit backed by the Trump campaign alleges that there are more than enough ballots to pull that off. “The evidence will show that the reduction in votes for [Biden] is 40,000 or more than the reduction in votes for [Trump] or, at the very least, in an amount sufficient to raise reasonable doubt as to the outcome,” the complaint alleges. Their demand for relief: Either Nevada certify no electors for any candidate, or that Trump be “declared the victor.”
Getting to there requires a bit of guesswork. The complaint alleges thousands of votes came from people who voted in other states or otherwise were not valid voters. Some untold number of votes, they argue, might have been incorrectly processed by signature-matching software that was programmed to be far too forgiving of mismatches. The alleged bad votes don't add up to enough to change who won, but a full investigation, they suggest, would obliterate the Biden margin, so the court should proceed on that assumption.
We'll know soon whether any of it works. Two of the five states on this list are scheduled to certify results before Thanksgiving: Michigan and Nevada. Georgia has already certified its vote, and Arizona's certification is proceeding with no serious challenges. If Georgia's recount does not alter any results, and there's no disruption in Michigan and Nevada, the week will end with Trump unable to contest the total in enough states to overturn the election. Contesting just Wisconsin and Pennsylvania would leave Biden on top.
But no presidential candidate has tried to contest this many ballots. The president has cast aspersions on every election that hasn't gone his way, from the 2016 Iowa caucuses to the popular vote in his race with Hillary Clinton. And if any future candidates are looking for a model for how to try to change a result, even if it degrades confidence in the election process, they have a new one.
“Trump privately plots his next act — including a potential 2024 run,” by Philip Rucker, Ashley Parker and Josh Dawsey
Looking past the recounts, behind the scenes.
“How Hispanic voters swung Miami right,” by Patricia Mazzei
The deepest look yet at Republican success in south Florida.
“Trump’s escalating attacks put pressure on vote certification process,” by David A. Fahrenthold, Beth Reinhard, Elise Viebeck and Emma Brown
How election officials are handling an attack on their work.
“Trump tries to drum out GOP election officials who won’t play his games,” by Zach Montellaro
Could Republicans who certify valid election results face primary challenges?
“Most Republicans greet Trump’s push to overturn the election with a customary response: Silence,” by Paul Kane, Mike DeBonis, Paulina Firozi and Rachael Bade
What the president's party is saying. (Spoiler: Not much.)
Battling for the presidency, from the golf course.
On the trail
Sean Parnell and John James aren't the only down-ballot candidates contesting their election defeats. A group of defeated Republicans, many who lost their races decisively, have held off on conceding and insisted that fraud or irregularity marred their elections.
In Washington, where Republican nominee for governor Loren Culp lost by 14 points, he has referred to “irregularities” that marred the count without specifying what they were, how many they were or any other information about whether they exist.
“When we have proof, then we'll bring that forward,” Culp told Seattle's KOMO News last week. No proof has emerged.
In Nevada, as mentioned above, a commissioner race in the state's most populous county was sent to a revote after the 10-vote margin for the victor turned out to be smaller than the number of contested votes. Republicans narrowly lost two House races in Clark County, and both candidates have sued for new elections. In a lawsuit filed this week, attorneys representing Republican Dan Rodimer called for a countywide revote, on the premise that the number of questionable votes counted, if the state looked into them, would be larger than the 12,446-victory margin of Democratic Rep. Susie Lee in the 3rd Congressional District. The same legal team, with the same arguments, previously asked for the court to order a revote in the 4th Congressional District, where Democratic Rep. Steven Horsford won by 16,173 votes. In both cases, judges are asked to assume that the number of ballots that contain potential signature mismatches and weren't caught by a machine count might be bigger than the win margins.
In Maryland, viral campaign video star Kimberly Klacik was routed by Rep. Kweisi Mfume, an unsurprising result in the Baltimore-based 7th Congressional District. Klacik won 28.1 percent of the vote, the strongest Republican result since the district was created; four years ago, for example, Donald Trump barely cracked 20 percent there. Klacik, who raised millions of dollars for a quixotic race, initially said she'd contest the results. But she has taken no steps toward doing so, and in a radio interview this weekend, referred in past tense to the election, touting the official vote count to emphasize how much she'd improved on traditional Republican numbers in Baltimore.
Three more House races remain too close for news outlets to project a winner — in Iowa's 2nd District, in California's 25th District and in New York's 22nd District. The current margins in each are a fraction of a percentage point. Republicans hold the lead in each race; Iowa Democrat Rita Hart has requested a recount in her race, but the California and New York races have yet to be certified, which is necessary before recounts can begin.
Some Republicans, meanwhile, are being wrapped into theories of election interference that they themselves aren't advancing. In her weekend interview on NewsmaxTV, Sidney Powell — who has been appearing as part of the Trump legal team before they distanced themselves from her Sunday evening — said that she was “reasonably certain John James was ripped out of his seat,” which James himself doesn't say, “and the same thing is true for Doug Collins in Georgia.” Collins, who now represents the Trump campaign in its challenges to the Georgia count, ran 292,760 votes behind the top two finishers in the all-party Senate primary this month.
Perdue for Senate, “Total.” Republican advertising in Georgia's runoff has been consistent for weeks, with Sens. David Perdue and Sen. Kelly Loeffler and their allies warning that defeat would give radicals total control of Washington. Biden doesn't appear here, but Democratic Senate Minority Leader Charles E. Schumer, Rep. Alexandria Ocasio-Cortez of New York and Stacey Abrams do, as avatars of the change the left wants. This spot even resurrects an old clip of Abrams referred to “undocumented” Americans as part of the “blue wave,” which Republicans have cited to argue that Abrams wants noncitizens to vote. (She doesn't.) The closing slogan is the starkest one of this campaign so far: “Vote David Perdue to save America.”
In the states
Campaigning in Georgia continued through the last weekend before the Thanksgiving holiday, with Democratic stars staying away from the state and Republicans continuing to swoop in. On Thursday, Sen. Tom Cotton of Arkansas returned to Georgia to rally with Sens. David Perdue and Kelly Loeffler, and on Friday, Vice President Pence joined them.
“The Republican Senate majority could be the last line of defense,” Pence said, stopping short of saying that Democrats had won the presidential election — and doing so minutes after the audience chanted “four more years.”
Although Trump allies suggested weeks ago that the president might rally in Georgia, no rallies have been planned yet. On ABC’s “This Week,” incoming White House chief of staff Ron Klain said President-elect Joe Biden would more likely than not come back to campaign in Georgia, a departure from the 2008 runoff for one of the Georgia seats, when Republicans invested in the race but the incoming Obama administration largely ignored it.
“Winning those two Senate seats in Georgia is important,” Klain said. “We've already moved people who were working on the Biden campaign on the recounts down there over to be supportive in the field work for our two candidates down there. And I expect you'll see the president-elect travel down there before Election Day.”
… one day until Michigan's election certification deadline
… two days until Nevada's election certification deadline
… eight days until Arizona's election certification deadline
… nine days until Wisconsin's election certification deadline
… 13 days until runoffs in Louisiana
… 16 days until the “safe harbor” date for states to choose electors
… 23 days until the electoral college votes
… 44 days until runoffs in Georgia
… 59 days until the inauguration