Analyzing Trump’s Legal Challenges

The 2020 presidential election was called for Joe Biden over Donald Trump by every major network decision desk on November 7, but the incumbent’s campaign lawyers and their allies have spent the intervening five weeks flooding the courts with lawsuits seeking to overturn the results—attempting everything from stopping the count of absentee ballots, to blocking the certification of countywide vote counts, to tossing the results of the entire election.

They’ve fared poorly. The Team Trump winning percentage depends on who you deem a member of Team Trump and what you include in the tally. Marc Elias, a prominent election lawyer who runs a website called Democracy Docket, puts the count—as of the evening of December 9—at 1-55. That is, the Trump legal team has prevailed just once while losing 55 times.

But the Elias tally, popular on social media, counts virtually every court action, however trivial. His count, for example, would include losing a motion for an evidentiary hearing that was denied because the judge wanted to rule on whether she had jurisdiction first, meaning that—in theory—they could win that exact same motion at a later time. And while his Democracy Docket website is very useful in gathering and presenting many of the key documents from the flood of post-election litigation, he’s a partisan Democrat active in many of the cases he’s counting. Democracy Docket lists as sponsors/partners the Democratic National Committee, the Democratic Congressional Campaign Committee, the Democratic Senatorial Campaign Committee, and progressive activist group Priorities USA. (Our requests to Elias to discuss the criteria for his count went unanswered.)

The Dispatch team, led by our Advisory Opinion co-hosts Sarah Isgur and David French, conducted its own analysis. Instead of counting each successful motion as a win or each failed appeal as a loss, we looked at the cases from start to finish—or where they stand in the process.

We’ve noted where cases have been dismissed, where they have been appealed, and where the temporary relief being requested—like an injunction or a temporary restraining order—has been denied. Of the 18 cases we tracked, eight have been dismissed, and three have been dismissed but are pending appeal. In two instances, injunctive relief was denied but the cases still are pending. The other five are pending.

What does that look like in win-loss form? 0-11, with seven cases outstanding.

ARIZONA

Donald J. Trump for President Inc. v. Hobbs: Dismissed

This suit, often referred to as the Sharpie lawsuit, was filed by the Trump campaign, the Arizona GOP, and the RNC in Maricopa County Superior Court on November 7. It alleged that poll workers encouraged voters to use permanent markers that allowed ink to bleed through the ballot and cause the ballots to be rejected as overvotes. The complaint argued that if ballots were reviewed they would “yield up to thousands of votes for President Trump and for other Republican candidates.” The plaintiffs sought a manual inspection of such ballots and to halt certification of the election.

On November 13, the defendants filed a motion arguing that ongoing ballot tabulation had rendered the case moot. The Trump campaign not objecting, a superior court judge dismissed the case with prejudice (removing the possibility of appeal) that day.

Further, it’s worth noting there is no merit to the claim that Sharpies can invalidate ballots. As noted in a Dispatch Fact Check, Maricopa County tweeted on Election Day that polling locations offered Sharpies because they are less likely to smudge. Also, the ballots used in the election were “offset,” meaning that the circles you fill in on your ballot don’t line up on the front and back of the ballot, so the ink bleeding could not cause overvotes on the other side.

Bowyer v. Ducey: Dismissed 

This is one of the “release the Kraken” lawsuits brought by plaintiffs represented by lawyer Sidney Powell, whose short tenure as a member of Trump’s legal team came to an end following a series of public statements in which she alleged that multiple states had deliberately used voting machines designed to surreptitiously switch votes from Trump to Biden. Following the campaign distancing itself from her, Powell opted to bring lawsuits alleging these claims independently in several states.

This lawsuit accused Republican governor Doug Ducey and Democratic Secretary of State Katie Hobbs of conspiring with elections hardware company Dominion Voting Systems to run the state’s election on software originally developed to help Hugo Chavez steal elections in Venezuela, and accordingly sought to block certification of election results. (The software in question, Smartmatic, is not used in Dominion voting machines and was only used in voting machines made by a different company in one U.S. county in 2020, Los Angeles.)

On Wednesday evening, a federal judge dismissed the case, writing that “allegations that find favor in the public sphere of gossip and innuendo cannot be a substitute for earnest pleadings and procedure in federal court.”

Arizona Republican Party v. Fontes: Dismissed 

On November 12, the Arizona Republican Party brought a case before the Maricopa County Superior Court asking for another hand recount in Maricopa County. The GOP argued that the county’s first state-mandated hand count erred in randomly sampling 2 percent of polling places rather than randomly sampling 2 percent of precincts—15 precincts—to ensure the accuracy of electronic vote tabulation. In doing so, the plaintiffs sought to block the Maricopa County election officials from certifying the state’s general election results. 

Maricopa County Superior Court Judge John Hannah dismissed the case on November 19. During the case’s November 18 hearing, however, Hannah said he was “having a hard time” grasping the time table of the Arizona GOP’s legal challenge to the state’s audit rules. “This audit process effectively started before the election,” Hannah said during the hearing. “They waited until after the election, until they knew how the vote had apparently come out, before they filed” the case.

Ward v. Jackson: Dismissed

In a case brought before the Maricopa County Superior Court, Kelli Ward, Arizona GOP chairwoman and one of the state’s Trump electors, alleged misconduct by election officials as part of her effort to annul the vote certification by Gov. Doug Ducey. Her suit alleged inadequate inspection of mail-in ballots in Maricopa County, as well as “failure by election officials to allow legal observation of the mail-in ballot signature-verification process.” The county also lacked transparency in its “duplication process,” the suit claimed, citing an “unusually high number of duplicate ballots” and the barring of legal observers. 

A Maricopa County Superior judge ruled against her challenge, and her suit was unanimously rejected by the state’s high court on December 8. “The challenge fails to present any evidence of ‘misconduct,’ ‘illegal votes’ or that the Biden Electors ‘did not in fact receive the highest number of votes for office,’ let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results,” the Arizona Supreme Court said in its ruling. 

GEORGIA

Trump v. Raffensperger: Pending

Filed in state court last Friday, this suit boils down a sweeping list of electoral grievances—“many thousands of illegal votes were cast, counted, and included in the tabulations” for the presidential election, thus “creating substantial doubt regarding the results of that election”—into one huge ask: for the court to either order a new election or, considering the improbability of pulling that off before the state’s electors must be sent, to provide another form of relief, such as allowing the legislature to appoint electors.

The suit alleges that more than 140,000 people were permitted to vote illegally, for a variety of reasons—they were underage, they had moved out of state, they were dead, etc. It also alleges, among other things, that Georgia officials violated state law by mailing out absentee ballot applications more than 180 days before the election.

Given Biden’s small margin of victory in Georgia, this suit isn’t as tall an order as some similar efforts the campaign has brought in other states—although the factual claims have yet to be adjudicated. The state has asked the court to dismiss the suit, which is ongoing.

Pearson v. Kemp: Dismissed, appeal pending

Brought by Georgia conservative blogger CJ Pearson, this federal suit was the state’s iteration of the “Kraken” family of cases spearheaded by ex-Trump lawyer Sidney Powell. The suit alleged a conspiracy of staggering scope: GOP elected officials in Georgia, including Gov. Brian Kemp and Secretary of State Brad Raffensperger, deliberately ran their election through a voting electronics company, Dominion Voting Systems, that used software designed to surreptitiously switch votes from one candidate to another in an untraceable way. It also alleged various other election irregularities.

The suit requested one of two remedies: Either that the court rule that mail-in ballots not count in the 2020 election, or that Georgia’s slate of presidential electors be disqualified. Earlier this week, a federal judge (one appointed by George W. Bush) dismissed the suit, ruling that the plaintiffs lacked standing, that they complaint was not timely, and that the desired relief was “extraordinary” and beyond his authority to provide: “They want this court to substitute its judgment for two-and-a-half million voters who voted for Joe Biden.” Powell has filed an appeal with the Court of Appeals for the 11th Circuit.

Wood v. Raffensperger: Injunctive relief denied, pending

This suit was brought by Lin Wood, a Georgia lawyer who has made public appearances alongside Sidney Powell at Georgia “Stop the Steal” rallies this month. 

The suit alleges that Georgia state officials did not follow Georgia law when they made changes to absentee ballot regulations this year in an effort to prepare for an unprecedented flood of mail-in voting thanks to the COVID-19 pandemic. These changes, he argues, resulted in an unfair election, easy to manipulate via fraud. Wood thus asks the court not to permit absentee ballots to be counted in the Georgia results. Wood also requested a temporary restraining order to prevent Georgia’s election results from being certified. 

While the case remains active, Wood’s request for a restraining order was denied by a federal judge on November 19, who noted that, among other weaknesses in the case, Wood lacked standing to sue. “To interfere with the results of an election that has already concluded would be unprecedented and harm the public in countless ways,” wrote District Court Judge Steven Grimberg, a Trump appointee. Wood appealed that decision, and on December 5 an appellate court denied his appeal, returning the same decision.

MICHIGAN

Costantino v. Detroit: Injunctive relief denied, case pending

The eight filings in this lawsuit allege that election officials in Michigan neglected to verify signatures, processed and counted voters whose names did not appear in the voter rolls, produced a batch of unsealed ballots attributed to Democratic candidates after the counting of absentee voting concluded, processed ballots arriving after the election deadline, and locked poll watchers out of the counting room after they raised challenges to the alleged fraud. “It’s a very significant case,” Rudy Giuliani, Trump’s personal attorney, said in a November press conference. 

The chief judge of Michigan’s 3rd Judicial Circuit rejected the plaintiffs’ motion for injunctive relief on November 13, stating in a 13-page ruling that they “are unable to meet their burden for the relief sought.” 

“It would be an unprecedented exercise of judicial activism for this Court to stop the certification process of the Wayne County Board of Canvassers,” Judge Timothy Kenny elaborated. On December 8, Judge Kenny denied the plaintiffs’ request for an “independent, non-partisan audit” to be completed by December 13. The case is still pending.

Trump v. Benson: Dismissed

In a November 19 court filing, the Trump campaign voluntarily dismissed its November 11 lawsuit that sought to throw out votes that were received after Election Day, that were processed on “defective or malfunctioning tabulating machines or software,” or that were tabulated in the absence of statutorily designated poll watchers.

Trump v. Benson: Dismissed, appeal pending

This isn’t a typo: The Trump campaign filed two different suits against Michigan Secretary of State Jocelyn Benson. In this case, the campaign joined Michigan resident Eric Ostergren, a poll challenger who was allegedly asked to leave his post, reportedly for refusing to follow social distancing guidelines. The campaign filed suit on November 4, 2020, and sought to stop the counting and processing of absentee ballots. The Michigan Court of Claims dismissed the suit on Nov. 6, noting: “The complaint does not specify when, where, or by whom plaintiff was excluded. Nor does the complaint provide any details about why the alleged exclusion occurred.” Further, the court described the requested relief—to stop counting ballots—as “extraordinary.”

The campaign filed a motion for an immediate consideration of its appeal on Nov. 6, but did not submit the appeal itself until Nov. 30, after the election had been certified. The court of appeals held that the certification “rendered plaintiff’s claims for relief moot.” The campaign has appealed to the Michigan Supreme Court.

NEVADA

Stokke v. Cegavske: Dismissed

A group of plaintiffs, including two candidate committees, a voter, and a member of the media, filed a federal lawsuit alleging that the county’s use of the Agilis software to automatically match signatures for mail-in ballots resulted in an “unequal risk of having their legal votes diluted by votes with mismatched signatures.” The lawsuit also claimed that the media was barred from meaningfully observing the vote count and requested expanded public access to the polling site. 

The New York Times reported that the plaintiff attended a Trump campaign news conference and said, “I went to vote and was told I already voted.” As it turned out, she was offered a provisional ballot but refused.

Federal Judge Andrew Gordon, an Obama appointee, denied the plaintiffs immediate relief following a hearing on November 6. The plaintiffs voluntarily dismissed the case on November 24. 

Law v. Whitmer: Dismissed

The Nevada Supreme Court unanimously rejected a Trump-backed appeal contesting the results of the state’s general election on Tuesday. The court’s six judges upheld a dismissal from District Court Judge James Russell last Thursday, in which he found that the Trump electors bringing the lawsuit “did not prove under any standard of proof that illegal votes were cast and counted, or legal votes were not counted at all, due to voter fraud, nor in an amount equal to or greater than” Biden’s margin of victory.

PENNSYLVANIA

Trump v. Boockvar: Dismissed

The Trump campaign filed suit against the Pennsylvania secretary Kathy Boockvar alleging a host of election irregularities, including that observers were not permitted to watch the absentee ballot canvassing and counting; that Democratic counties allowed ballots to be “cured” while Republican counties did not; and that the commonwealth’s mail-in voting process “lacked all of the hallmarks of transparency and verifiability.” The campaign sought to block certification of the election results.

The plaintiffs ultimately filed three separate complaints. On November 21, the trial court dismissed the case, finding that the court had been “presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.” District Judge Matthew Brann noted that “In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state.”

The campaign appealed on narrow grounds on November 22. On November 27, the 3rd Circuit Court of Appeals upheld the dismissal. There has been no request for the Supreme Court to hear the case.

Kelly v. Commonwealth of Pennsylvania: Dismissed, appeal rejected by the U.S. Supreme Court

Rep. Mike Kelly and two other House candidates alleged that expanded mail-in ballot provisions approved by the Pennsylvania legislature last year were unlawfully implemented under the Pennsylvania Constitution. The complaint sought to block vote tallying and decertify the results of the election. The Pennsylvania Supreme Court dismissed the case at the end of November. This week, the U.S. Supreme Court rejected the plaintiffs’ appeal. “The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied,” the Supreme Court’s one-line order stated. There was no published dissent from other members of the court.

TEXAS

Texas v. Pennsylvania, Georgia, Michigan and Wisconsin: Pending at the U.S. Supreme Court

Texas Attorney General Ken Paxton filed a 154-page lawsuit on Tuesday against Pennsylvania, Wisconsin, Michigan and Georgia, alleging that these four battleground states implemented unlawful statutory changes to their election rules prior to November 3. Given the Supreme Court’s original jurisdiction on cases involving inter-state disputes, Paxton asked the highest court to “enjoin the use of unlawful election results without review and ratification by the Defendant States’ legislatures” and allow all four states’ legislatures to appoint new presidential electors despite federal law’s December 14 deadline for electoral certification. President Trump announced Wednesday that his campaign will join Texas in the lawsuit. Missouri Attorney General Eric Schmitt, a Republican, and 16 other states have also said they will file a brief in support of the lawsuit.

University of California-Irvine law professor Richard Hasen summarized the defects with the suit in a December 8 blog post: “Texas doesn’t have standing to raise these claims as it has no say over how other states choose electors; it could raise these issues in other cases and does not need to go straight to the Supreme Court; it waited too late to sue; the remedy Texas suggests of disenfranchising tens of millions of voters after the fact is unconstitutional; there’s no reason to believe the voting conducted in any of the states was done unconstitutionally; it’s too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not).”

WISCONSIN

Trump vs. Wisconsin Elections Commission: Pending

This suit, filed by the Trump campaign’s attorneys in federal district court, alleges that actions by elected officials “tainted more than 50,000 ballots, a number well in excess of the current estimated difference between the vote totals for the Republican and Democrat candidates for President” and asking the court to “remand” the election to the Wisconsin legislature so it can “determine the appropriate remedy.”

The plaintiffs argued that a series of practices, including expanded mail-in balloting, “proliferating” ballot drop boxes, limitations on poll watchers, and alleged “ballot tampering” violated Wisconsin’s statutory election framework.

The trial is set for Thursday before U.S. District Judge Brett Ludwig, a Trump appointee. Ludwig has already signaled that he views Trump’s case as weak, saying that he had a “very, very hard time seeing” how the case was justiciable in a federal court, as the Trump campaign’s argument that the legislature had the constitutional power to decide Wisconsin’s electoral votes made it, not the court, “the appropriate arena for a remedy.”

Feehan vs. Wisconsin Elections Commission: Pending 

This federal suit was brought by Sidney Powell, formerly associated with the Trump campaign. One of the two plaintiffs, former congressional candidate Derrick Van Orden, later said his name was used without his permission by Powell.

Powell is asking the court to decertify Wisconsin’s election results and for Gov. Tony Evers to certify a Trump victory. The suit alleges that software in voting machines made by Dominion Voting Systems was constructed to allow former Venezuelan dictator Hugo Chavez to rig elections, a ploy that was then adapted by “Dominion, domestic third parties or hostile foreign actors” to alter vote records without a trace.

In order to substantiate these claims, Powell asked for security video from rooms used for voting in the TCF Center, a facility which is actually in Michigan.

This week, U.S. District Judge Pamela Pepper denied the plaintiff’s request for an evidentiary hearing, noting that asking for such a hearing before the judge had ruled whether her court had jurisdiction to hear the case at all was “bass-ackward.”

Trump v. Evers: Pending

Filed by the Trump campaign on December 1—after election results were certified in Wisconsin—this lawsuit sought to overturn Joe Biden’s victory in the state by tossing out hundreds of thousands of ballots the campaign claims were illegal.

On December 3, the Wisconsin Supreme Court rejected the campaign’s effort to bypass lower courts in hearing the case. After the decision, the Trump campaign filed a new motion in Milwaukee County court, requesting that ballots in Milwaukee and Dane counties be tossed out. A hearing for the case has been set for Thursday afternoon.