The Republicans joining Paxton’s crusade often sidestepped questions about their willingness to disenfranchise millions of Americans by elevating a claim made within the lawsuit itself. The question wasn’t whether fraud had occurred, Paxton et al. suggested, but instead “whether state officials violated the law by systematically loosening the measures for ballot integrity so that fraud becomes undetectable.”
This focus — claiming that changes to the rules of voting made fraud impossible to prove — was convenient for two reasons. The first was that it obviated the need to prove fraud occurred, something that weeks of effort had failed to demonstrate. The second was that it aimed to replicate the Supreme Court’s decision in the 2000 Bush v. Gore case, in which the court objected to uneven rules delineating recount procedures in Florida.
So, for the Republicans standing with President Trump, this was the rallying cry: They’re simply concerned about the integrity of the voting process in these states.
The Supreme Court declined to hear Paxton’s case, offering no suggestion that the justices saw the argument as having any merit whatsoever. But this refrain that certain states had dubious processes kicking open the door to potential fraud has remained. Again: There’s been no credible evidence of fraud that has emerged but, again, that’s mostly no longer the point.
With last week’s vote of the electoral college formalizing President-elect Joe Biden’s victory, Trump’s desperate effort to retain his position has turned to somehow challenging those votes as they are counted by Congress on Jan. 6. If a senator and a representative step forward to challenge the results of a state, they can force each chamber to withdraw to consider the challenge. Then if the election-stealing fairy waves her magic wand, Trump will suddenly have another term in office. It’s pretty straightforward.
Why would members of the House and the Senate challenge the results in a state? You guessed it: because of these earnest, considered concerns about the voting process in states that went against Trump.
It’s nonsense. Dishonest nonsense. Cherry-picked hand-wringing that starts from the position that the votes should be thrown out and works backward to rationalize that outcome.
Consider what the Trump campaign itself actually claims happened.
On Sunday, it announced that it was filing another lawsuit with the Supreme Court, aimed at questioning the results of the election in Pennsylvania.
Why? To rescind “three decisions which eviscerated the Pennsylvania Legislature’s protections against mail ballot fraud,” a news release states, “including (a) “prohibiting election officials checking whether signatures on mail ballots are genuine during canvassing on Election Day, (b) eliminating the right of campaigns to challenge mail ballots during canvassing for forged signatures and other irregularities,” because election observers weren’t always allowed in close proximity to vote-counting and because of changes in how mail-in ballots would be returned.
The campaign had earlier agreed with Paxton’s lawsuit by articulating similar concerns in other states. A motion to intervene filed by the campaign articulated the concerns:
“Pennsylvania’s Secretary of State issued guidance purporting to suspend the signature verification requirements, in direct violation of state law. In Michigan, the Secretary of State illegally flooded the state with absentee ballot applications mailed to every registered voter despite the fact that state law strictly limits the ballot application process. In Wisconsin, the largest cities all deployed hundreds of unmanned, unsecured absentee ballot drop boxes that were all invalid means of returning absentee votes under state law. In Georgia, the Secretary of State instituted a series of unlawful policies, including processing ballots weeks before election day and destructively revising signature and identity verification procedures.”
These are the sorts of concerns that make it impossible to have confidence in the results, it seems. Yet these are also practices and procedures that were in place or that changed this year in a number of other states that aren’t a focus of Trump’s complaints — often because they’re states that Trump won.
We broke the claims above into five buckets to assess how the rules in each state compared.
- Rules around matching voter signatures on mail-in ballots. (Cited as a concern in Pennsylvania.) The value of verifying ballots by matching signatures is deeply contested, and more than a dozen states don’t use the process to verify ballot legitimacy. In most states that do use signature-matching, voters are then given the chance to fix their ballot, but in a handful of states, they aren’t.
- Rules around challenging ballots during vote-counting. (Cited as a concern in Pennsylvania.) Most states allow those present at vote-counting to challenge the validity of a ballot — including Pennsylvania. (Some states allow only certain officials to challenge a ballot.) The complaint from Trump’s campaign appears to center on the allowable causes for those challenges, which vary by state. (Compare Montana and Vermont, for example.)
- Changes to the mail-in vote process. (Cited as a concern in Michigan.) Given the coronavirus pandemic, a number of states made it easier to vote by mail, including some states that sent mail-in ballot applications to every registered voter and a handful of states that sent actual ballots. The result was a wide range of voting methods, from states such as Louisiana that didn’t accept the coronavirus as an excuse for voting by mail to California, which joined states such as Utah and Oregon in sending every voter a ballot.
- Availability of drop boxes. (Cited as a concern in Wisconsin.) By letting voters return ballots in secured drop boxes, states both limited in-person interactions at polling places and avoided a flood of ballots that would need to be time-stamped by the U.S. Postal Service. Most states offered this option, according to analysis from Lawfare. (In some states that didn’t, such as Texas, ballots could still be returned at government offices.)
- When states began processing mail-in ballots. (Cited as a concern in Georgia.) States such as Pennsylvania and Michigan only began counting ballots on Election Day itself after Republican legislatures in those states declined to expand the window for dealing with the influx. The result was that those ballots, which heavily favored Biden, were counted later than the day-of ballots that favored Trump, boosting Trump’s claims that somehow the mail ballot totals were suspect. In other states, the ballots could be processed — verified, prepared for scanners — well in advance of Election Day, vastly speeding the process and reducing the problem of batched results. (In some states, no window was delineated.)
Here is how each of the 50 states compares on these five procedures. In general, an outlined circle is a process to which the Trump campaign has more objection.
You can see that there’s not a lot of consistency. Alabama, for example, would seem to be a place that Trump’s team finds frustrating, having no signature match, no ability to challenge a ballot, use of drop boxes and an expansion of vote-by-mail. But Trump won Alabama by a wide margin, so, by the campaign’s standards, that means that its results were beyond reproach.
In some states, such as Michigan, most of the protections Trump’s campaign wanted to see were instituted, such as signature matching, the ability to challenge ballots and no pre-processing of mail-in votes. Yet Trump lost, so they focus on the state’s having mailed out absentee ballot applications. Which the state did before the primary in May — allowing people to become permanent absentee voters — but not before the general.
Again, the overarching issue is ostensibly that states at issue changed these rules. But the changes are also used to claim that fraud became inevitable, which is both ridiculous and light-years from having been proved. The change is meant to win the legal fight; the claims about fraud, the rhetorical one.
But that the states being targeted remain solely ones that Trump lost gives it all away. The concern is that Trump lost, and everything else is retrofitted to make that inconvenient fact go away.