The Sweep: Midnight Train to Georgia’s Special Elections

One Lawsuit, Two Lawsuits, Red Lawsuits, Blue Lawsuits

While election litigation does technically continue, the chances of the Trump campaign’s lawsuits overturning any votes—let alone enough to flip at least two states—are rapidly diminishing. For an in-depth look at the various lawsuits, you can tune into Advisory Opinions episodes here. But even as I type this, several of the pending lawsuits are being withdrawn, being dismissed, or fizzling as those who have brought them struggle to substantiate their allegations in the courtroom. 

Over the weekend, the President tweeted: “Our big cases showing the unconstitutionality of the 2020 Election, & the outrage of things that were done to change the outcome, will soon be filed!” But there’s no indication yet of what such a case would allege or why it would be more successful than the two dozen or so cases filed by Trump’s team or other Republicans that have already failed.

In Arizona, for example, the Trump folks filed a lawsuit claiming that Maricopa County encouraged some voters to use Sharpies to fill out their ballots knowing that the ink would be read by the machine as an “overvote” and voided. But as it turned out, the machines read Sharpie ink just fine—and even if they didn’t, the machines are programmed to alert the voter if there is an overvote and push the ballot out so that the voter can get a new one. And as in every state, a spokesperson explained, “tabulators are certified for accuracy by state and federal agencies, and we do a logic and accuracy test before and after each election so voters can be sure that that equipment is verifying those votes and counting them.” That lawsuit was quietly dropped last week. 

In Pennsylvania, the Trump team has dismissed several of its own claims but is still pursuing the argument that some counties encouraged voters to fix their absentee ballots and others didn’t. It’s not a frivolous claim on its own—states should have uniform election rules for all of their citizens—but it affects so few votes that even if the Trump folks won, it would have no effect on the outcome of the state’s electoral college vote. For example, Bucks County sent 1,600 voters notices about ballot errors, but it’s unclear how many people actually showed up to cast provisional ballots, and in Montgomery County 49 ballots were fixed by voters. 

More than 68,000 votes separate Joe Biden and Donald Trump in Pennsylvania. And even if Pennsylvania switched its electoral votes to Trump, he would still only be at 252 votes. And then, even if he flipped Arizona, he’d still only be at 263 votes. You see the problem. 

And that brings us to Georgia. 

Biden is currently leading Trump by 14,000 votes in Georgia. Secretary of State Brad Raffensperger announced that the state would recount all its votes by hand, meaning that no voting machines would be used. 

This is particularly interesting because some Georgia counties used Dominion voting machines, which have been the target of several of the President’s tweets claiming that the software used on these machines was compromised and that it switched or deleted votes that were cast for him. While these claims have been fact checked to death, the Georgia hand recount means that we will be able to know whether the voting machines correctly counted the ballots that were fed into them, putting this theory to rest one way or the other. The count will be completed by Wednesday at midnight, and so far, several counties have already finished without issue. 

Realizing a hand recount could undermine claims about problems with voting machines, the President has started on a new line of attack about the Georgia recount specifically. He tweeted that “Their recount is a scam, means nothing. Must see fraudulent signatures which is prohibited by stupidly signed & unconstitutional consent decree.” 

Under Georgia law, an absentee voter must sign the outer envelope of their ballot and that signature is compared to the one on file in the voter registration system. Back in March, the Democratic Party had sued claiming that “minorities were disproportionately affected when they had their ballots rejected.” The consent decree was a court order agreed to by both parties—basically a settlement binding the state moving forward. 

The agreement included language indicating that “if the registrar or absentee ballot clerk determines that the voter’s signature on the ballot envelope does not match the signature on file, that reviewer must get two others to also review it” and after that “a majority of the reviewers must agree that the signature is not a valid match in order for the ballot to be thrown out.” It also provided “steps for local election officials to notify a voter—by phone, mail or email—in a timely fashion about problems with a signature.”

An Atlanta attorney filed a lawsuit claiming that this agreement violated the Georgia constitution because the “change was made ‘unilaterally’ and ‘without the approval or direction of the Georgia General Assembly.’” Georgia’s Deputy Secretary of State Jordan Fuchs dismissed the allegation as “baseless” and “grasping” on Friday. “Signature match is intact and the General Assembly passed legislation to allow voters who failed to include a signature time to add one,” he said. “We strengthened signature match, and will continue to do so, period.”

Regardless, remember that the ballots have now been irrevocably separated from their envelopes and cannot be matched back together. So the only option for the Trump team now is to go through the envelopes and find at least 14,000 signatures that should have been rejected. If they were able to do that to a judge’s satisfaction then, because we don’t know how those people actually voted, Trump’s lawyers could argue that the only remedy would be a new election. 

So, what are the chances of finding any new votes in a recount anyway? Really good, it turns out … if you only need a couple hundred votes. There have been 31 statewide recounts since 2000. The average change was 282 votes.

Georgia and Pennsylvania have both had recounts for statewide judicial races in the last 20 years—one changed by 15 votes and the other by 281. In fact, only 3 statewide recounts have ever changed the result of an election—the 2004 Washington gubernatorial election, the 2006 Vermont state auditor election, and most famously, the 2008 Minnesota senate race between Al Franken and Norm Coleman. Coleman was ahead 215 votes before the recount and lost to Franken by 225 votes in the end. 

After the 2016 election, plenty of Democrats wanted a recount in some of the closer states. Marc Elias, general counsel for the Hillary Clinton campaign, sought to downplay expectations, writing at the time that “the number of votes separating Donald Trump and Hillary Clinton in the closest of these states—Michigan—well exceeds the largest margin ever overcome in a recount.” He was right, of course. Even so, Wisconsin recounted its votes that year, adding 131 into Trump’s column. 

That was a very long way of saying: Joe Biden will be the President-elect, regardless of how the lawsuits or recounts play out. Here’s a look at how it all shook out (h/t to Bruce Mehlman, a former George W. Bush political appointee, whose PowerPoint about the election, “Everything Changed and Nothing Changed,” I highly recommend): 

Georgia on My Mind

Now all eyes are on Georgia and the two special elections that will decide control of the Senate for the first two years of the Biden administration. 

In recent days, I talked to two voters in Georgia about how they are feeling. Neither voted for Trump in 2016; both did in 2020. And both plan to vote for the Republican senators in the special election.

Sarah: How would you say your vote for Trump balanced between his personality (“he fights for us,” “he isn’t like those other Republicans,” “he doesn’t sound like a politician”) and the policies he pursued over the last four years?

RM, a non-white single woman who works in public relations: Donald Trump’s personality was a high negative for me—including/along with his character, personal behavior, and rhetoric. Those are key aspects of why I didn’t vote for Trump in 2016—along with the fact that he didn’t have a track record in public policy and I didn’t think we could trust his promises, particularly on social policy and even on foreign policy. (I was part of the NeverTrump movement in 2016, speaking out against him and voting independent for the first time.) 

Four years later, however, we did have a track record and a solid one at that. The policies he pursued, championed, or at the very least allowed to advance were significant and there are many tangible successes for conservatives to point to under his Administration on fiscal, social, and foreign policy (and of course, the judges). 

SC, a black man who works in economic development: I held my nose and voted for Trump. I didn’t like his behavior, but some policies have been beneficial … or the policies of his administration. So it might have been smarter people underneath him who he takes credit for. But he does not fit the mold of being presidential. There’s plenty of times he could have opted to take the high road and been more of a leader instead of getting down in the muck. But I voted for him because I was concerned about the left’s agenda in general and I was concerned about [Kamala Harris’s] influence. I felt like no matter what their rhetoric was now, their past resumes showed differently in dealing with the black community and I didn’t think that would change once they were in office.

Sarah: How do you respond to Trump’s recent statements about the election being rigged and vote fraud costing him the race? What parts resonate with you and what parts don’t?

RM: I do not believe this election was rigged or stolen. I do believe that pockets of voter fraud exist, but I do not think it’s widespread enough to have cost him the election. I think there is significant inefficiency, disorganization, and confusion within the voting process and that is lamentable—it should not be that way in the USA. So I think there does need to be reform in that regard. But I don’t believe voter fraud cost Trump the election and I think it’s highly problematic to perpetuate that myth. 

SC: Unless you’re a diehard Trump supporter, you’re not out in the streets yelling stuff was rigged or stolen. I do think there was some level of voter fraud, whether it be individual poll workers throwing out ballots. I don’t know if it’s up to the conspiracy that somebody’s chief of staff made the voting machines and programmed it to flip votes? That’s kind of far-fetched. The simplest answer is usually the easiest. But there are folks who have an unbridled hatred of Donald Trump and could throw out ballots. Was it millions of votes that could swing the electoral college? I don’t think so, but for someone who wants fair and protected elections, individuals need to be investigated and prosecuted. But I don’t think it swung the election. 

I was watching Meet the Press with my parents and to have that kind of a coordinated effort just seems very unlikely. But it fits his personality not wanting to concede, not wanting to give up power, or go down swinging. But at the end of the day hopefully we’ll have a semi-smooth transition of power. So, yeah, Trump’s rhetoric just adds more to his character flaws and overshadows some of the good policies that have been put in place.

Sarah: Assuming that you’re voting in the special election, are you concerned that other people are being dissuaded from voting because they don’t think their vote will be counted based on what POTUS has said?

RM: I will be voting in the special election, supporting both Republican candidates and doing whatever I can to help their campaigns in the coming weeks. I am not concerned that other people are being dissuaded from voting for this reason. Rather, I think all the hype and controversial rhetoric will cause people on both sides to turn out in high numbers. I am concerned that Trump’s continued defiance may be hurting the GOP more broadly, including here in Georgia. 

SC: Not in Georgia. I don’t think it’s going to keep people at bay. We know how important keeping McConnell as senate majority leader is, and having that crucial check to keep those wild-out progressives in check. Red wave in 2022? Who knows. But this is that linchpin to keep a Biden White House and a Pelosi House in check. Conservatives know that’s important. That’s the only thing being pumped on the airwaves: our two seats are the only two things standing between an infringement on our rights. I don’t think Trump tweets about fake elections, calling out our Secretary of State—people aren’t really paying attention to that. I don’t see it impacting the runoff. 

Sarah: Why do you think Republicans will win or lose those races?

RM: I think Republicans will win both races, primarily because both Raphael Warnock and Jon Ossoff are far-left in their policy proposals and personal beliefs. I’m convinced that Georgia is still a center-right state (though I acknowledge that demographics have drastically shifted in recent years), and I think as people take a closer look at the candidates in the coming weeks they will determine that Kelly Loeffler and David Perdue best represent the values and priorities of Georgians. I was shocked to see Biden win Georgia, but I think that had more to do with the anti-Trump sentiment (rather than a pro-Biden, pro-Democrat, pro-Leftist view), and I don’t think that will filter down to these Senate run-offs. 

SC: I have a lot of confidence Republicans are going to keep both Georgia senators. It’s a game of turnout. On the conservative side, conservatives normally come out for runoffs anyway. A lot of turning out the vote will be on the progressive side. Democrats are going to have to convince folks to come back in the same large numbers. And Republicans don’t have to be reminded. We know when the runoff is. Most conservative voters don’t need to be reminded when Election Day is. Period. 

On the phone with SC I asked a few more questions related specifically to his experience as a black man who voted for Trump. 

Sarah: Can GOP make more inroads with black men?

SC: Can they? Yes. Will they? That’s a different story.

Sarah: Do your parents know you voted for Trump?

SC: My parents are very conservative, but they vote Democrats 99 percent of the time. My mom doesn’t know I voted for Trump, but maybe they can guess because I haven’t exactly been cheering about Biden winning. I didn’t vote for Trump in 2016, but this time around it was a clear choice of two evils—and I decided to ride with the evil that I knew.

Sarah: Do you tell people you voted for Trump? 

SC: I might not volunteer the information. But I have thicker skin than most. If someone pegged me in a corner, I’d tell them. I’m not going to debate his personality flaws. We all know that. 

Sarah: Do you think Trump is racist?

SC: I wouldn’t want to go as far as to say he’s racist, because progressives have taken the term of racist to apply to anyone who doesn’t think like them. And you can’t label everyone with the blanket brush of racism. Do I think Trump only thinks about himself? I don’t know. I’ve never been close to President Trump. I’ve never shook his hand. I don’t know the man as an individual. I don’t think he’s racist. Does he have implicit biases? Yeah, we all do. Because he didn’t outright condemn white supremacy groups, that has framed a lot of the perception about who he is. 

I don’t care what anybody says—even though, yes, that was annoying. What policies did he put in place? What bills did he try to push through? What laws actually came out? Those are substantial things. If you can point and say, yeah, that’s a racist law or that disproportionately hit minority groups. And I didn’t see any of that in those 4 years. But I wasn’t an insider. So maybe it was a really good cover up job, but from a layman out in the public, I didn’t see orders that came out that directly impacted minority groups. Maybe I just didn’t see them. But plenty of people have condemned white supremacy and then done stuff behind our backs.

From a polished politician, yes, [Trump’s Charlottesville comments were] a flub. Had it happened to Romney, that would have been a totally different thing because Romney is a statesman and a political professional and someone who would know how to handle that question. That’s not Trump. I’m not going to hold him to a standard that he never was. Am I saying I love the guy? That I’ve got a MAGA hat? No. Should he have said something different? Yes. But am I upset that he didn’t? No, because his policies haven’t done anything to negatively impact my community.

At the end of the day, if you’re only upset about what he says … Where do we draw the line? If he has the KKK down at the White House for being outstanding U.S. citizens or something, then I’d be like “okay, we have something to discuss.” Until then, let’s focus on the important things instead of getting distracted by the little stuff. 

Photo by Megan Varner/Getty Images.