Friday, November 13, 2020

Evidence and Legal Argument in Trump's Voting Fraud Lawsuits in Pennsylvania and Michigan

         Videos of the Mob Scene of Poll Watchers at the TCF Center Ballot Counting Center in Detroit

On Tuesday night, Ronna McDaniel, Chair of the Republican National Committee, told FOX News commentator Sean Hannity that she had 500 sworn affidavits alleging over 11,000 incidents of voter fraud organized by the Democratic Party to throw the presidential election to Joe Biden.

At the same time, The New York Times published an article reporting that they had contacted the top state-wide election officials in 49 states--Texas did not respond--and none of them said that there had been widespread voter fraud.  Some of these officials were Republicans who disagreed with Trump's claims about fraud.

So what's going on here?  Perhaps the best way to assess the evidence and legal arguments is to look at the lawsuits filed by Trump to see how persuasive they are.  I have studied three of the recent lawsuits--two in Pennsylvania and one in Michigan--in the effort to understand the strategy of Trump's lawyers and whether it has any chance of success.

My general conclusion is that the logical arguments in these lawsuits are incoherent, and the factual arguments are implausible.  The logical arguments are incoherent because they are both self-contradictory and contradictory of what Trump has claimed.  The factual arguments are implausible because the testimonial evidence for fraudulent voting and vote counting consists of vague and unsubstantiated rumors and reports of what some people think they saw or heard.


On November 5, Trump's lawyers filed a petition in the Court of Common Pleas of Montgomery County, Pennsylvania, objecting to the counting of 562 absentee and mail-in ballots cast in that country.  Oral argument occurred on November 10.

Republican challengers had objected that the Board of Elections was "canvassing and counting absentee and mail-in ballots for which the outer declaration envelope is not completely filled in with the elector's signature, address and/or date of execution," as required by state election law.  The petitioners said that this "is based on a clear error of law and must be reversed."

No one knows whether these contested ballots are from predominantly Democratic or Republican voters.  But we do know that whether or not these 592 ballots are counted will make no difference in the outcome of the election, because Biden is ahead in Montgomery County by over 130,000 votes, and he's ahead in the state by over 46,000 votes, and perhaps ultimately over 100,000 votes.  

This is a recurrent problem with all of the Trump lawsuits--the number of votes they are contesting is always far too low to make any difference.  That's what distinguishes this election and the election of 2000.  In 2000, Al Gore lost the election by losing Florida by less than 500 votes, when the U.S. Supreme Court ordered the vote count stopped.  In 2000, a few hundred votes decided the presidential election.  That is not the case this year, in which Biden has carried his states with  much larger margins, and across the country he has won the popular vote by over 5 million votes.

What is also remarkable about this case in Pennsylvania is that in the oral argument, under questioning from the Judge Richard Haaz, Trump's lawyer--Jonathan Goldstein--was forced to admit that they were not charging anyone with fraudulent behavior, which denies Trump's insistence that the Democrats organized a conspiracy to steal the election.

If you go to page 11 of the oral argument transcript, you will see this exchange:

"THE COURT:  In your petition, which is right before me--and I read it several times--you don't claim that any electors or the Board of the County were guilty of fraud, correct?  That's correct?"

"MR. GOLDSTEIN:  Your Honor, accusing people of fraud is a pretty big step.  And it is rare that I call somebody a liar, and I am not called the Board or the DNC or anybody else involved in this a liar.  Everybody is coming to this with good faith.  The DNC is coming with good faith.  We're all just trying to get an election done.  We think these were a mistake, but we think they are a fatal mistake, and these ballots ought not to be counted." 

"THE COURT: I understand.  I am asking you a specific question, and I am looking for a specific answer.  Are you claiming that there is any fraud in connection with these 592 disputed ballots?"

"MR. GOLDSTEIN: To my knowledge at present, no."

"THE COURT: Are you claiming that there were improper influence upon the elector to these 592 ballots?"

"MR. GOLDSTEIN: To my knowledge at present, no."

Yesterday, in Arizona, another Trump lawyer contradicted Trump's claims about fraud.  On Saturday, Trump's lawyers filed a lawsuit alleging widespread fraud by poll workers in Maricopa County.  But yesterday, at the beginning of a six-hour court hearing, Trump's lawyer Kory Langhofer began his opening statement by saying that the plaintiffs were "not alleging fraud" or "that anyone is stealing the election," because they are only raising  concerns about a "limited number of cases" involving "good faith errors."  This is what I mean by the logical incoherence of the Trump lawsuits: his lawyers begin by repeating Trump's claims about fraudulent voting, but then they often are forced to deny this, even as they contradict Trump.

The Arizona case also illustrates what I mean by the implausibility of the factual evidence supporting the Trump lawsuits.  In Arizona, Trump's lawyers submitted evidence collected online from Arizona voters.  But then the lawyers admitted that many of these online declarations were false.  Judge Daniel Kiley remarked: "The fact that your process for obtaining these affidavits yielded affidavits that you yourself found to be false does not support a finding that this process generates reliable evidence."

In other Pennsylvania cases, however, the Trump lawyers have tried to press the charge of fraudulent vote counting by Democrats.  When the counting of mail-in ballots in Pennsylvania erased Trump's early lead and pushed Biden ahead, Trump's lawyers asked a federal judge to stop the vote counting in Philadelphia, because they claimed that Republican observers were being denied access to the Philadelphia Convention Center where the votes were being counted.  But then under questioning from Judge Paul Diamond, one of Trump's lawyers admitted that Trump had "a nonzero number of people in the room" where the counting was occurring.  To which Diamond responded: "I'm sorry, then what's your problem?"  (Diamond was appointed by President George W. Bush.)  Diamond then made a deal for 60 observers from each party to be allowed inside the convention center.

Then, a few days later, Trump's lawyers filed a lawsuit in the U.S. District Court for the Middle District of Pennsylvania--Donald J. Trump for President Inc. v. Kathy Boockvar.  Boockvar is the Pennsylvania Secretary of State.  Seven Pennsylvania county boards of election are also named in the suit as defendants.

In October of 2019, the Pennsylvania legislature passed Act 77, which allowed, for the first time in the history of Pennsylvania, voters to choose to vote by mail, rather than in person on election day, without having to provide any reason or excuse.  The primary constitutional argument of Trump's lawyers in this lawsuit is that this created "an illegal two-tiered voting system for the 2020 General Election, devaluing in-person votes" (par. 13); and since it is easier to cast a fraudulent ballot by mail-in voting than by in-person voting, this debased or diluted the votes of those who voted in person, which violates the Equal Protection clause of the 14th Amendment. Trump's lawyers rely on the declaration in the U.S. Supreme Court's Bush v. Gore (2000) decision that "having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another" (par. 205). 

For many reasons, this argument is ridiculous.  First of all, there is no violation of Equal Protection when voters have the freedom to choose whether they want to vote in person or by mail.  And no court has ever ruled otherwise.

Second, the legal doctrine of "laches" applies here--someone cannot claim a right if they have shown an unreasonable delay in making the claim.  In this case, Trump and the Republican Party had a full year after the passing of Act 77 to challenge its constitutionality.  Clearly, they waited until the election was over, and they could see that the mail-in ballots favored Biden over Trump, and only then did they decide that this was unconstitutional.

The third problem with this legal argument is that it would require overturning the outcome in all of those states that allow mail-in voting, including the states won by Trump. It is hard to believe that judges would want to do that.

The factual allegations in this Pennsylvania lawsuit are supported by "reports of voters"--usually unnamed--who claim to have seen or heard about illegal voting or vote counting.  Once one looks into these "reports," they turn out to be highly dubious.  Here's one example as stated in the lawsuit:

"126.  Mail carriers have noted significant anomalies related to the delivery of mail-in ballots.  A mail carrier for the USPS in Erie County has noted that during the course of the General Election mail-in ballot delivery period there were multiple instances in which dozens of mail-in ballots were addressed to single addresses, each ballot being in a different name.  Based on the carrier's experience delivering mail to those addresses, the carrier is aware that the people whose names were on the ballots are not names of people who live at those addresses.  In addition, ballots were mailed to vacant houses, vacation homes, empty lots, and to addresses that do not exist."

"127.  It has been reported by Project Veritas, in a release on November 5, 2020, that carriers were told to collect, separate and deliver all mail-in ballots directly to the supervisor.  In addition, Plaintiffs have information that the purpose of that process was for the supervisor to hand stamp the mail-in ballots."

Although "mail carriers" is plural, apparently this report comes from only one mail carrier in Erie--Richard Hopkins.  It was an affidavit written by Project Veritas and signed by Hopkins that prompted Senator Lindsey Graham to call for the Justice Department to investigate the postal service in Pennsylvania as possibly part of a Democratic conspiracy for fraudulent vote counting favoring Biden.

Hopkins has claimed that after Election Day on November 3, mail carriers in Erie were still picking up mail-in ballots from their customers on November 4-6.  By Pennsylvania law, mail-in ballots must be postmarked no later than November 3 to be counted as legal ballots.  So the ballots the mail carriers picked up after November 3 should not have been counted.  Hopkins has said, however, that the mail carriers in Erie were told by their supervisors that "every vote counts," and that every ballot they picked up on November 4-6 should be separated from the other mail and delivered directly to their supervisor.  Hopkins says he found this suspicious, and he became even more suspicious when he overhead two supervisors talk about "backdating" ballots to November 3.  

But then earlier this week, Hopkins was questioned by investigators from USPS, and he apparently recanted the affidavit prepared by Project Veritas and signed a revised affidavit, saying that he had not heard a supervisor use the word "backdate," and that he had heard only snippets of a conversation that were not clear to him. Oddly, when it was reported that he had recanted his earlier statement, he appeared in a video made by Project Veritas saying that this was a lie--that he had not recanted.  And later he said that the postal investigators had "played" him.  Project Veritas said that he had been coerced into signing the new affidavit. 

It then turned out that Hopkins had audiotaped two hours of the interview with the postal investigators, which is held by Project Veritas, and which can be found through a link in the Washington Post story above.  (Yes, I know, this has become a weirdly complicated story!)  If you listen to the interview, as I have, you will hear the investigators repeatedly tell Hopkins that the interview was voluntary--that he could refuse to talk with them and just walk away.  They carefully question him about exactly what words he heard from his supervisors.  And it becomes clear that he did not actually hear anyone talk about "backdating" the postmarks on ballots to November 3.  This definitely denies the claim in the Project Veritas affidavit that he had heard the postmaster tell a colleague on November 5 that the postmaster was "backdating the postmarks on the ballots to make it appear as though the ballots had been collected" on Election Day instead of the day after.

And yet, even if Hopkins did not directly hear talk about "backdating the postmarks," it does seem suspicious if the mail carriers in Erie were told to deliver the ballots collected after Election Day to their supervisors, separated from the other mail.  If other mail carriers were to corroborate this, it would be worth investigating.

A few days ago, the Erie Times-News reported their review of the 129 mail-in ballot envelopes that were postmarked November 3 but arrived at the Erie County Board of Elections after Election Day.  Of those 129 ballots, only two were processed through the Erie postal facility.  All the others were processed through the Pittsburgh facility or other postal facilities around the country.  People registered to vote in Erie County were sending in ballots from across the country where they had travelled on Election Day.  Moreover, the newspaper found that nine late ballots processed in Erie were postmarked November 4 or later.

So we are left with two possibilities.  Either Hopkins' story about "backdating the postmarks" in Erie is incorrect.  Or it is correct, but the postal conspirators who did this were very ineffective, because they got only two fraudulent ballots counted.

Again, my general point is that this illustrates how the factual evidence of fraud cited in the Trump lawsuits is highly dubious.

By the way, Biden won in Erie County by a slim 1,424-vote margin out of more than 138,000 votes cast, which was a 10% jump in turnout from 2016.  In Erie County, registered Democrats outnumber Republicans 99,000 to 75,000.  Trump carried the county in 2016 by less than 2,000 votes.  Based on interviews of voters in Erie County, the Wall Street Journal concluded that some of the white working class voters who voted for Trump in 2016 voted for Biden this year, although they still favor Trump's conservative policies, and they oppose the extreme leftist or socialist policies of some Democratic leaders: "In short, these voters say they soured on Trump, the man, rather than Trump policies."

This confirms my argument that the great weakness of Trump's Republican Party is not their conservative policies but the bad character of Donald Trump, which drives away voters who like the policies.  The moral character of the President really does matter.  Joe Biden was shrewd in recognizing that.  The Republicans who apologize for, or try to overlook, Trump's bad character have made a big mistake.

Notice also the incoherence in the argument of Republicans that the ballots with votes for Biden were fraudulent.   Many of those ballots for Biden were also ballots for Republicans who won their elections, because many voters wanted to remove Trump while keeping Republicans in Congress.  If the Republicans want to condemn Biden's victory as fraudulent, they must also condemn their own congressional victories as fraudulent.  Isn't it strange that the Democratic strategy was to rig the election to fraudulently elect Biden, while also fraudulently electing Republicans to Congress?  This makes no sense at all.

I have just learned this morning (Friday) that the law firm representing Trump in this Pennsylvania lawsuit--Porter Wright Morris and Arthur--has announced that they are withdrawing from this case.  They give no reason for doing this.  Can we assume that the legal reasoning in this case is so preposterous that it has become embarrassing for the firm?


On Tuesday, Trump's lawyers filed a lawsuit in the U.S. District Court for the Western District of Michigan--Donald J. Trump for President Inc. v. Jocelyn Benson.  Benson is the Michigan Secretary of State.  The lawsuit is directly against the counting of votes in Wayne County (Detroit), where Biden built up a big margin of victory--about 320,000 votes--which contributed to his state-wide margin of about 145,000 votes over Trump.  In 2016, Trump won Michigan by about 11,000 votes.

As in the Pennsylvania case, the general constitutional claim by the Trump lawyers in this Michigan lawsuit is that the counting of fraudulent ballots violated the Equal Protection clause of the 14th Amendment, because "a fraudulent ballot, if counted, disenfranchises a lawful voter."

Specifically, the claim is that "election officials in Wayne County refused to permit statutorily designated challengers to observe the conduct of the election and the processing of ballots."  And since the Republican Party challengers were prohibited from observing what was happening in the processing of ballots, the election officials were free to count fraudulent ballots.  The Trump lawyers then provide testimony from the affidavits of Republican Party challengers who report the illegal vote counting that they observed.

Notice the obvious contradiction in their argument here.  On the one hand, they say the Republican Party challengers were prohibited from observing what was happening.  On the other hand, they report the illegal activity observed by the challengers.

At some points in the complaint, Trump's lawyers concede that some Republican challengers were allowed to observe, but not as many as Democratic challengers.

The problem here is that the vote tally room at the TCF Center in Detroit became chaotic, as you can see in the videos at the top of this post, and as has been reported in the Detroit Free Press.  The word went out on the Internet for Trump supporters to "go to the TCF."  Hundreds of people surrounded the building, demanding to be let in.  Once maximum capacity was reached inside the building--where "social distancing" was being enforced--election officials had to close the doors.  The Trump supporters outside were pounding on the windows and chanting "stop the count."

Under election rules, each group contesting the vote is allowed to have 134 challengers observe the counting process.  According to reporters for the Detroit Free Press, on Wednesday night, the day after the election, there were 400 challengers inside the counting room, which included 134 Republican challengers, 134 Democratic challengers, and 134 nonpartisan challengers.  Trump's lawyers offer no evidence that these numbers are incorrect.

Trump's lawyers say that "many challengers testified that their challenges to ballots were ignored and disregarded" (par. 40), which apparently concedes that there were many Republican challengers in the counting room.

It's hard to judge the credibility of some of the affidavits cited by Trump's lawyers.  In particular, a woman named Articia Bomer is repeatedly quoted.  Bomer stated: "I witnessed election workers open ballots with Donald Trump votes and respond by rolling their eyes and showing it to other poll workers.  I believe some of those ballots may not have been properly counted" (par 41).  Bomer also stated: "I observed a station where election workers were working on scanned ballots that had issues that needed to be manually corrected.  I believe some of these workers were changing votes that had been cast for Donald Trump and other Republican candidates" (par. 45).  What's the significance of her distinction between "I observed" and "I believe"?  Could her testimony be corroborated by others?  With 400 challengers roaming the room, shouldn't there be many people corroborating this?  Importantly, have the nonpartisan challengers reported anything like what she reported?

If I am right about the weaknesses in the Trump lawsuits--the incoherence of the legal arguments and the implausibility of the factual arguments--then we can expect to see the judges dismissing these lawsuits as frivolous.  This will probably happen by the end of next week--November 20.

Then the question is what is Trump's next move?  Since Republicans control the state legislatures in some of the swing states, will Trump ask these Republican legislators to overturn the popular vote victory for Biden in their states and appoint a slate of Trump electors to the Electoral College?  Would the Republicans allow Trump to do that?


Federal District Court Judge Matthew Brann issued his decision in the Pennsylvania case--Donald Trump v. Kathy Boockvar, et al.--on November 21.  As I expected, it was a scathing condemnation of the arguments made by Trump's lawyers.  Here's the Introduction:

"In this action, the Trump Campaign and the Individual Plaintiffs . . . seek to discard millions of votes legally cast by Pennsylvanians from all corners . . . . In other words, Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated.  One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens."

"That has not happened.  Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.  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.  Our people, laws, and institutions demand more.  At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted.  Therefore, I grant Defendants' motions and dismiss Plaintiffs' action with prejudice."

Now, today (Friday, November 27), we have the decision of the U.S. Court of Appeals for the Third Circuit rejecting the appeal of Judge Brann's decision by the Trump campaign.  Judge Stephanos Bibas wrote the opinion for the panel, which included Chief Judge D. Brooks Smith and Judge Michael A. Chagares.  The opinion begins: "Free, fair elections are the lifeblood of our democracy.  Charges of unfairness are serious.  But calling an election unfair does not make it so.  Charges require specific allegations and then proof.  We have neither here." Their decision is blunt: "The Campaign's claims have no merit."

What is remarkable about this decision is that all three of the judges in this case were appointed by Republican presidents.  Judges Smith and Chagares were appointed by President George W. Bush.  Judge Bibas was one of President Trump's first appointees to the federal appellate bench.  Judge Bibas is regarded as extremely conservative.  When he was a law professor at the University of Pennsylvania Law School, he taught a seminar on conservative thought with Professor Amy Wax.  He has been a regular speaker at Federalist Society events.

If the evidence for fraudulent voting is as clear as Trump says it is, why are his lawyers failing to persuade any federal judges--not even conservative judges appointed by Trump himself with the recommendation of the Federalist Society?

Trump's people have said they want to appeal this case--and the others they have lost--to reach the U.S. Supreme Court.  But if you read the decisions in these cases, you will see that their scathing refutation of Trump's case is so devastating that it's hard to see why the U.S. Supreme Court would take up the cases on appeal.  

No comments: