It was foreseeable that we would fall into this unfortunate scenario upon the end of the election. A combination of close results in some critical states and a sore loser alleging widespread fraud in an attempt to reverse the results of the election through the courts.
After all, that has been Donald Trump’s modus operandi. The president and his companies have been involved in at least 4,095 litigations over three decades according to an investigation by USA Today (https://bit.ly/38BfYvD). This time, it’s a battle for the right to vote by mail and begun long before knowing the result that gave Joe Biden the win.
Since the start of pandemic, both campaigns were embroiled in hundreds of legal clashes over this absentee vote, as it is known. Some 496 lawsuits were filed in different states according to a joint study by Stanford University and the Massachusetts Institute of Technology (https://stanford.io/38zHTfd).
Democrats, for the most part, sought to get judges to make voting by mail easier. They wanted to simplify voting forms, extend the time permitted for counting ballots, or prevent ballots from being voided for petty reasons.
Republicans, by contrast, argued that lowering voting safeguards and making the process more flexible would facilitate fraud. They requested, for example, that vote-by-mail ballots have both the signature of the voter and a witness. Both parties had their judicial triumphs, but in many cases the Democratic spirit of easing access to our constitutional right to vote prevailed.
Voting by mail has always been an attractive option for Americans. This year with more than 237,000 deaths and over 10 million COVID-19 cases, most voters preferred to vote before election day in order to avoid crowds or having to physically appear at the polls.
The avalanche of millions of vote-by-mail ballots was confirmed. More than 100 million people voted before election day, in person or by mail. This is more than double the 47 million people who voted early in 2016.
It was precisely 4 years ago, soon after winning the presidency, when Donald Trump first made allegations of fraud. He attributed losing the popular vote – by about 3 million fewer votes than Hillary Clinton – to massive fraud among mail voters and millions of people who had voted illegally.
In an attempt to legitimize his claims, the president established a commission to investigate the supposed irregularity. Months later, the group disintegrated without having found any evidence of systematic fraud.
This year, during his re-election campaign, President Trump once again lashed out against voting by mail, reiterating that it would lead to massive fraud. His presidential campaign issued a statement referencing a series of incidents, citing a report from the Heritage Foundation, a conservative group, in which 1,071 irregularities were identified over decades (https://bit.ly/2JQ4DgB). Not even in a single year, in no single state, would that number be representative of mass fraud. This confirms that the impact on the result is less than negligible.
Another study by the Brennan Center for Justice, a liberal think tank, determined that the percentage of fraudulent incidents in US elections is 0.00004% and 0.00009% of the total vote (https://bit.ly/2UrPzrT).
Despite the disbandment of his own commission and research disproving his claim, the president continued to question the integrity of the election during the campaign and asked his followers to vote in person because, according to him, voting by mail is very dangerous. He also did not promise to accept the results of the election if they did not favor him.
Meanwhile, his opponent Joe Biden insisted that people vote early or by mail. It was not surprising that the majority of Americans who voted early or by mail voted for Biden, and those who voted on election day supported Trump.
In several battleground states, votes cast on election day were counted before those cast by mail. For that reason, the president was in the lead by the time pundits began scrutinizing the election, but once they started counting vote-by-mail ballots, Biden surpassed his opponent.
The president had already prepared for a scenario with an adverse outcome. He took the opportunity, once again, to question the integrity of the election and blame the results on voter fraud. On Twitter he wrote that he had won, that the election was being stolen, and in a message from the White House he said that there had been mass fraud.
He anticipated filing for litigation and that his case might reach the Supreme Court, where he had nominated three of the nine justices, tipping the scales in his favor (https://youtu.be/d8I0nDufM1k).
The problem is that he did not present any evidence to support such a serious accusation, and based on facts, there was no voter fraud. Thus far, no one has shed light on any evidence of wrongdoing in enough votes to change the outcome.
The Republican campaign’s legal team has filed lawsuits in states where Trump lost by small margins. However, many of those lawsuits have already been dismissed by judges as minor incidents that cannot be verified and did not affect many votes. In some cases, judges have stated that the Republicans’ arguments are mere speculation or hearsay. In other words, they have not provided enough evidence to support their claims. Let’s look at some examples.
No Evidence of “Fraud”
It was the state that sealed Joe Biden’s victory. Although in 22 of 50 states the deadline for receiving vote-by-mail ballots extended beyond election day, the presidential campaign focused on Pennsylvania because ballots had to arrive within three days of the election and because is a state that Trump needed to win.
Republican congressmen from the local legislature took the case to the Supreme Court after the Pennsylvania Supreme Court authorized receiving votes cast after polls closed. In an emergency decision, one of the highest justices, Samuel Alito, ordered about 10,000 votes that were received after November 3rd to be thrown out.
The problem facing the Trump Campaign was that Biden won Pennsylvania by 45,000 votes and nothing would change if 10,000 votes were thrown out.
A judge from one of the lower courts also permitted the campaign’s observers to get closer to the voting machines in Philadelphia. And this past Monday they filed a new lawsuit in seven counties for what they describe as an illegal system with two different sets of standards for voting. They claim that nearly 2,600,000 ballots cast by mail cannot be verified with the same strict scrutiny applied to in-person voting. They argue that this allegedly opens the door to fraud and constitutional violations of equality and protection under the law.
In Pennsylvania, a recount is required if the vote difference between the two candidates is 0.5%.
Like in Pennsylvania, two lawsuits demanding that mail ballots not be counted due to alleged irregularities also failed. Republicans allege that their observers were not permitted to be present while election officials reviewed and corrected ballots. State regulations allow for ballots to be corrected if voting machines cannot read them correctly due to additional marks or stains on the ballot.
The court also dismissed a lawsuit that claimed that election officials who tabulated the ballots had forced them to change the date of receipt on some votes.
Republicans were also upset that some 2,000 red votes had been mistakenly counted as blue. In this case, election authorities admitted that there had indeed been a technical error that had temporarily duplicated results when mail ballots were scanned, but that the error had been immediately corrected (https://bit.ly/2UhfToe).
On Tuesday, the president’s legal team filed yet another lawsuit in Michigan alleging unequal treatment of Republican voters, illegal vote counting, and a possible problem with the computer program that would affect the results.
Biden is ahead of Trump in Michigan by more than 148,000 votes and, thus far, there is no evidence of fraud among those votes. In this state, if the win margin is only 2,000 votes or less, or if there are clear signs of errors or irregularities, then a recount is mandatory.
Again due to lack of evidence, a judge dismissed a lawsuit alleging that 53 mail ballots had been received after polls closed. They asked for these mail ballots to be separated and submitted a written statement penned by an election clerk who claimed to have seen ballots arriving past the deadline mixed up with those that arrived on time. It was just a few dozen votes from a single county.
Biden won by more than 14,000 votes in Georgia, and in this state, which is controlled by Republicans, local authorities themselves have said they found no evidence of fraud. They will recount votes in Georgia because, according to the law, it is mandatory if the margin is less than 0.5%.
The Republican campaign asked a judge to prohibit announcing official results until ballots that had been filled out using markers had been manually reviewed. They argued that the ink might run outside the bounds of the bubble that had been filled in, and that this could make it difficult for the machines to count the votes and lead to problems such as duplicate votes.
Here Biden leads by more than 13,000 votes. In Arizona, a recount is required when the difference is 0.1%.
A lawsuit was filed alleging that more than 3,000 people had voted illegally because they no longer lived in the state. As evidence, they included the addresses of 3,062 people who, they claim, moved to other states. But local officials say state law allows certain people to vote even if they reside outside of Nevada, such as students, people currently serving in the military and their families.
Biden’s lead is more than 36,000 votes. Nevada does not have a set requirement to request a recount, however the campaign making the request must bear the costs of the process.
In Wisconsin if the margin is less than 1% a recount can be requested, but whoever requests it must pay for it. Biden’s lead is more than 36,000 votes and the Trump campaign has already asked for a recount.
The Republican Campaign also sent Attorney General William Barr statements from poll workers detailing some wrongdoing as a reason to investigate their allegations of fraud.
A few weeks of litigation and uncertainty await us. Recounts in multiple states will not begin until election authorities certify the final result and this may push the recount process into early December. However, some analysts agree that the recounts will reveal a difference of only a few hundred votes – not enough to affect the final result.
The numbers do not favor the president. To reverse the results, Donald Trump would have to recuperate more than 71,000 votes in certain states. He would particularly need to win three states where Biden triumphed: Pennsylvania, Georgia, and Arizona.
Could the Supreme Court decide the outcome?
A precedent was set back in 2000 when, after 37 days of judicial decisions and recounts, the Supreme Court gave the victory to George Bush, who was leading in Florida by about 1,700 votes. In this case, the president was chosen by the highest court in the land based on the results of a single state. Bush had asked the court to stop the recount.
However, Trump and his legal team are looking to change the results of the election by not counting vote by mail ballots. His case would not be limited to one state, but several. They will have to provide enough evidence to support a pattern of systemic fraud in order to nullify tens of thousands of votes and snatch the victory from Democrat Joe Biden.
Moreover, before being accepted by the Supreme Court, the suits must first be heard in the lower courts. The alleged massive fraud is no more than a few complaints of isolated irregularities without any backing. These types of incidents occur in elections where the voter roll has not been completely purged, multiple votes are cast under the same name, election laws are violated, people make mistakes while counting votes, or even due to technical issues.
But even when these incidents do occur, in most cases, they are not systemic in scale so as to invalidate the election and reverse the outcome. Even some Republican election officials in battleground states have said they have found no evidence of fraud.
The president has the right to request a recount, as established by election laws. That being said, we cannot allow him to continue deceiving the country with more lies and irresponsible accusations lacking legitimate evidence.
Donald Trump did not win the election, nor has there been massive fraud. That, so far, is unequivocally false. Disputes must be resolved by December 14 before the Electoral College meets to vote for the winning candidate in each state. Unless Republicans have a hail Mary trick up their sleeve, Joe Biden should get more than the 270 electoral votes necessary to win the presidency.
Meanwhile, Trump intends to continue pushing the idea that the election was stolen from him. What is worrying is that his messaging is getting through to people. In an opinion poll conducted by Politico / Morning Consult, 78% of the people they surveyed felt that voting by mail led to widespread fraud (https://politi.co/3kgnduP). This shows that if you repeat a lie enough times, it becomes true for a few.
Fortunately, you can’t fool so many people at once. Donald Trump discredited voting by mail by making allegations of a widespread fraud that was supposedly being orchestrated against him, but fell short by betting on massive in-person voter turnout in the middle of a global pandemic. That narrative tracked with his denial of the severity of the coronavirus.
Among the president’s inventory of statements is included an imaginary injectable disinfecting antidote that could eliminate the virus from the body, or rogue doctors who were paid more money if they attributed the cause of death of their patients to COVID-19. It is impossible to forget when he called some scientists stupid for not knowing what they are talking about, or his repeated assertion that the curve is flattening meanwhile statistics indicate that we are in the middle of the week with the highest number of cases since the pandemic began.
And as if that were not enough, when experts assured that wearing facial coverings is the most effective way to reduce contagion, the president, alongside his closest collaborators, refused to wear masks, failing to lead by example and sending the wrong message – implying that wearing a mask is irrelevant in the midst of a virus that will simply disappear “like a miracle.”
Donald Trump and his lies have been the main victim, and the principal guarantor, of his own creation.