By Dave Boucher, Kevin McCoy, Kevin Johnson, Detroit Free Press
The Trump campaign announced Wednesday it is pursuing court actions to stop ballot counting in Michigan and Pennsylvania, and to prevent the counting of absentee ballots in Georgia that it claims arrived after an Election Day deadline.
Launching a multi-state legal battle to secure a second White House term over Democratic challenger Joe Biden, the campaign also made plans to seek a recount in Wisconsin.
The announcements of the Pennsylvania and Michigan lawsuits came shortly before Biden was projected Wednesday afternoon to win Michigan. As of Wednesday afternoon, he led President Donald Trump by approximately 46,000 votes, with 96% of the estimated votes tallied.
Although thousands of Michigan votes remain to be counted, many are from absentee ballots in traditional Democratic strongholds. And although Trump leads in Pennsylvania’s incomplete vote counts, his lead has narrowed as absentee and mail ballots continue to be tabulated.
In unfolding national counts, Trump and Biden remain locked in a tight race that focuses on incomplete voting totals in Michigan, Pennsylvania, Georgia, Wisconsin, Arizona and Nevada.
Biden was projected as the winner in Wisconsin on Wednesday, hours after Trump campaign manager Bill Stepien announced plans to seek a recall. “There have been reports of irregularities in several Wisconsin counties which raise serious doubts about the validity of the results. The President is well within the threshold to request a recount and we will immediately do so,” he said.
Taken together, the legal challenges are aimed at wiping out enough mail and absentee ballots to change the election outcomes before presidential electors could be awarded to Biden.
Michigan suit seeks to halt counting
The Michigan lawsuit alleges the Trump campaign has not gotten adequate access to areas in election boards where ballots are being counted, according to the filing and a statement from Stepien. The statement did not specify where that was a problem.
“President Trump’s campaign has not been provided with meaningful access to numerous counting locations to observe the opening of ballots and the counting process, as guaranteed by Michigan law,” Stepien said in a news release.
“We have filed suit today in the Michigan Court of Claims to halt counting until meaningful access has been granted. We also demand to review those ballots which were opened and counted while we did not have meaningful access,” the statement said.
The filing also alleges that Michigan election boards haven’t complied with a state law that requires one inspector from each major political party at ballot counting locations. Election-related decisions and actions by Michigan Secretary of State Jocelyn Benson “have undermined the right of all Michigan voters — including the voters bringing this action — to participate in fair and lawful elections,” the filing alleged.
Benson’s office did not immediately respond to a request for comment about the lawsuit or the Trump campaign allegations.
“Michigan’s elections have been conducted transparently, with access provided for both political parties and the public, and using a robust system of checks and balances to ensure that all ballots are counted fairly and accurately,” said Ryan Jarvi, the press secretary for Michigan Attorney General Dana Nessel, in a written statement.
The case is similar to one announced in Pennsylvania, where the campaign is suing to halt vote counting “until there is meaningful transparency and Republicans can ensure all counting is done above board and by the law.”
Georgia suit claims late ballots were mixed with others
Late Wednesday, Trump’s legal team filed a lawsuit in Georgia Superior Court that seeks to enforce the state’s election laws.
The filing alleges that absentee ballots received after the 7 p.m. deadline on Election Day were not stored in a way that prevented inadvertent or intentional counting. That “harms the interests of the Trump Campaign and President Trump because it could lead to the dilution of legal votes cast in support of President Trump,” the court filing said.
Georgia law requires late absentee ballots to be stored unopened for a set period of time and eventually destroyed along with other ballots, the suit says.
Justin Clark, Trump’s deputy campaign manager, said in a statement that a Republican poll observer saw 53 late absentee ballots “illegally added to a stack of on-time absentee ballots in Chatham County.”
Board of Elections Chairman Tom Mahoney said he believes the observer is mistaken.
The Trump campaign wants a judge to issue an order requiring the Chatham County Board of Elections “to collect, secure, and safely store all absentee ballots received … after 7:00 P.M. on Election Day” and provide an accounting of those ballots.
The lawsuit was authorized by David Shafer, the chairman of the Georgia Republican Party. He declined to say how the poll watcher knew the ballots were received after the deadline.
“Our intent is to make sure every lawful ballot is counted, and that none of the lawful ballots are canceled out by unlawful ballots,” Shafer said.
Multiple suits underway in Pennsylvania
Trump’s campaign is pursuing a few legal battles in Pennsylvania. It said it’s suing to stop Democratic election officials from allegedly “hiding the ballot counting and processing from our Republican poll observers.”
And it moved to intervene in last week’s U.S. Supreme Court decision letting stand a Pennsylvania Supreme Court ruling that upheld a three-day extension of the deadline by which mail ballots must be received. The extension was not part of new voting regulations that Pennsylvania lawmakers enacted last year.
Absentee and mail ballots received after the polls closed in Pennsylvania on Tuesday were to be segregated from those received earlier to allow for court challenges.
A week ago, several U.S. Supreme Court justices predicted the Pennsylvania Supreme Court’s unconstitutional expansion of mail voting could create ‘serious post-election problems,'” the filing said. “The Justices stressed that these important issues had not “escape[d] [the Court’s] review … and the case could be resolved under a ‘shortened schedule,’ if the time came when this Court’s review was necessary. That time has come.”
“Given last night’s results, the vote in Pennsylvania may well determine the next President of the United States. And this Court, not the Pennsylvania Supreme Court, should have the final say on the relevant and dispositive legal questions,” the court filing said.
The nation’s highest court has refused to decide on the matter twice, including an initial 4-4 deadlock before newly confirmed Justice Amy Coney Barrett was seated. In the court’s subsequent decision last week, Justice Samuel Alito said there was not enough time to hear and decide the challenge before the election.
“It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court’s decision before the election. That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” Alito wrote.
Barrett is expected to take part if the Supreme Court agrees to review the case.
In another suit, Trump’s campaign alleges Pennsylvania Secretary of State Kate Boockvar improperly changed the state deadline by which first-time voters must provide identification in order to vote absentee or by mail.
Trump has claimed victory in Pennsylvania. Biden said, “I feel very good about Pennsylvania. Virtually all of the remaining ballots to be counted were cast by mail and we’ve been winning 78% of the votes by mail in Pennsylvania.”
Michigan, Pennsylvania suits focus on the role of poll watchers
Michigan law allows observers from opposing campaigns to monitor vote counting. This is a normal part of the election process, intended to give both parties the opportunity to ensure the law is followed when people vote and ballots are tabulated.
The court challenge in Michigan is similar to one in Pennsylvania that resulted in an overnight legal defeat for the Trump campaign.
Trump’s attorneys are also battling on other legal fronts in Nevada.
Election challengers appointed by political parties and interest groups, as well as poll watchers, are authorized to observe the election process. While election challengers are authorized to question a voter’s eligibility to vote, poll watchers cannot.
Neither election challengers nor poll watchers are allowed to speak directly to voters, handle poll work or electronically record what they see in a polling location or clerk’s office.
The Michigan lawsuit comes after Trump has sowed misinformation about the vote counting process there. For months, he has sought to undermine the integrity of absentee and mail-in voting across the country, claiming without evidence they are ripe for fraud.
Michigan Secretary of State Jocelyn Benson has cautioned it will take time to count every vote in the state. Her office did not immediately respond to a request for comment about the lawsuit or the Trump campaign allegations.
Trump’s campaign lawyers in Pennsylvania lost a separate suit seeking to win closer observation of mail and absentee ballot counting in the Philadelphia area.
That’s a region Trump has said his legal team would focus on to guard against erroneous ballot counts.
Trump’s observers want to be close enough to see the writing on the outside of the ballots. But a ruling by the Court of Common Pleas for Philadelphia County said outside observers “are directed only to observe and not to audit ballots.”
In issuing its denial, the Court of Common Pleas for Philadelphia County said a witness for Trump’s legal team “provided copious testimony as to his ability to observe the opening and sorting of ballots.”
The court said Board of Elections officials had complied with the state’s observation regulations. “However, we would not discourage the Board from considering the implementation of arrangements to allow for an additional corridor for observation along the side of the (ballot examination) tables if feasible — subject to spatial distancing under COVID-19 and voting privacy requirements,” the ruling concluded.
Trump’s election lawyers have appealed that case to Pennsylvania’s Commonwealth Court.
During a news conference in Harrisburg on Wednesday night, Pennsylvania Gov. Tom Wolf described the Trump campaign’s attempt to stop the counting of votes as “simply wrong.”
“It goes against the most basic principles of our democracy,” Wolf said. “I’m going to fight like hell to protect to the vote of every Pennsylvanian.”
Boockvar, the Secretary of State, said she could not comment on active litigation. However, she added that officials would oppose “every effort to, at any point, to shut down the vote.”
Election experts assess Trump’s legal strategy
Lonna Atkeson, director of the University of New Mexico’s Center for the Study of Voting, Elections and Democracy, said there are often no shortages of legal challenges after elections.
They largely follow two strategies, including attempts to stop the count based on challenges to ballot qualifications.
Trump appeared to refer to such an effort Wednesday in remarks early Wednesday when he suggested Democrats were attempting to meddle with election results.
If Trump’s lawyers sought to halt counting in specific jurisdictions, Atkeson said the president’s team would have to show specific reasons for taking such an action.
“Judges are not usually inclined to step in and stop a count because you want to see what’s going on,” Atkeson said. “I don’t see judges open to something like that. Usually, the strategy is to pursue ballots that have not been counted.”
Michael McDonald, a political science professor at the University of Florida, said Trump’s lawyers would likely attempt to disqualify ballots. However, he said judges are reluctant to “change numbers.”
“Once the ballots are counted and co-mingled with others, they would be very difficult to challenge or re-engineer how they were submitted,” McDonald said. “I think judges would be very skeptical.
“So far, the only allegation of fraud here is that Trump is saying it’s fraud. That’s not evidence,” he said.
Contributing: Clara Hendrickson, Detroit Free Press; Donovan Slack, USA TODAY, Dylan Segelbaum, York Daily Record, Crissa Shoemaker DeBree, Bucks County Courier Times; Will Peebles, Savannah Morning News
This article originally appeared in Detroit Free Press/USA Today.