President Donald Trump and the Republican National Committee’s vows to challenge the election results and win through the courts appear unlikely to be successful with so few ballots at issue in litigation to make any difference in enough states to matter.
Republicans and the Trump campaign have lodged none of the types of serious legal challenges that could prompt recounts or challenges of vote counts over a significant numbers of ballots in the battlegrounds of Pennsylvania, Michigan, Nevada, Arizona and Georgia.
And even as votes are still counted, with former Vice President Joe Biden ahead in key states, observers haven’t flagged enough votes to make a difference in the ultimate results – with none or few ballots challenged during canvasses in key states and counties like Milwaukee; Gwinnett County, Georgia; Pima County Arizona; or Detroit.
In order to use the courts to win the presidential election, the Republicans and Trump campaign would need to challenge enough votes in court to flip a state they’re losing in their favor.
“That’s a standard they haven’t been close to meeting yet,” Ben Ginsberg, a longtime Republican lawyer and CNN analyst, told Jake Tapper Friday morning.
Lawyers would have needed to gather proof on Election Day to back up court claims of fraud, and none of that has materialized either, Ginsberg added. Court filings since Election Day from the Trump campaign have repeatedly left out presenting any proof – with some filings even devoid of assertions of fact.
Biden is up, as of Friday afternoon by thousands of votes in four contested states, and Trump’s lawsuits that remain in court appear to deal with unknown, uncounted or negligible numbers of votes, in some cases contesting 100 ballots or less.
Democratic lawyers working on election issues have asserted none of the cases could move the needle, and noted there aren’t accusations of widespread fraud. A week ago, voter eligibility challenges and fraud accusations could have been made in Pennsylvania before a key deadline, yet few came in across the state and none in Philadelphia.
A Republican lawyer in Pennsylvania deeply familiar with election challenges also told CNN legal challenges in the commonwealth get Trump nowhere.
Yet the Trump campaign still said in a statement Friday morning that the election was “far from final,” and the Republican National Committee chairwoman said legal teams were deploying in four states, including Michigan. They’ve pledged to pursue recounts in some states, including Georgia, where the vote still is extremely close between Trump and Biden.
Pennsylvania mail-in ballots arriving after Election Day
Pennsylvania has a few lingering cases that deal with what ballots count, including what may be the most serious election legal challenge, before the US Supreme Court. But the situation of whether the state should count mail-in ballots that arrived after Election Day has prompted counties across the state to keep those ballots separate, or segregate them, and not yet record them as votes to factor them into the race as the court case plays out.
Lawyers for Pennsylvania Republicans on Friday asked the court to order the state to not take any action on any mail-in ballots received after Election Day, even though the state was already segregating the ballots.
Even if they are counted, they are unlikely to be helpful to Trump – since mail-in votes in Pennsylvania, especially from urban areas, have broken for Biden in wide margins.
State officials estimate more than 10,000 ballots have arrived in the mail after the election.
A lawyer for the Pennsylvania Democratic Party wrote in a brief to the high court that it shouldn’t step in too quickly because “this Court may well not need to hear and decide these cases.”
“Even if there were a legal basis for refusing to count any such ballots (and there is not),” former Solicitor General Donald Verrilli argued, “No reason exists to assume that the number of ballots received in that window would be large enough to be decisive in the races for President and House of Representatives.”
Pennsylvania ballot observers
Several cases in Pennsylvania have focused on the Trump campaign’s ability to stand closer to ballot processors to observe them in Philadelphia, so those are not about votes at all.
One case related to voter ID verification cuts back a deadline for voters to verify themselves with election boards from November 12 to November 9 – a future event, so a number of votes is unknown, and the circumstances of the case are so narrow, it’d likely deal with a very small number of voters, if at all.
A state court judge in Harrisburg on Friday ordered the separation of some provisional ballots that came in from absentee voters across the state, setting up the possibility of more legal action over a subset of provisional votes. Republicans accused the secretary of state of illegally advising that provisional ballots can be offered to absentee voters whose ballots would have been rejected because of defects – and thus are seeking to throw out those votes. The number of those types of provisional ballots is unknown and those votes, too, haven’t been recorded yet.
Yet another case that was in court this week Republicans have already tried to drop. It challenged 93 ballots in a county outside Philadelphia, where voters whose absentee ballots were defective were given the opportunity to correct so their votes would be counted.
Arizona – Sharpies in Maricopa County
The Trump campaign intervened in a lawsuit alleging voters in Maricopa County, home of Phoenix and the state’s most populous county, were instructed to use Sharpie pens which they suggest may have caused their “ballots either not being counted or being improperly subjected to human adjudication.” The GOP lawyers asked for voters to have permission to observe canvassing.
During a court hearing on Thursday a lawyer for the Trump campaign asked for more than two weeks to conduct discovery and brief their legal arguments, an idea that a lawyer for the Arizona Democratic Party said could delay the vote tally for the entire state postponing the results of the election.
The judge rejected that timeline and also cast doubt over the voters’ request to allow voters who voted on Election Day to observer poll workers canvassing mailed-in and early voter ballots.
“Seems like a disconnect,” said Judge Margaret Mahoney. “Going down and watching a different process of ballots, which were completed in a different fashion. I’m not sure that’s relevant to what … the plaintiffs are saying is their harm here.”
Only one voter in the lawsuit said she believed her vote was not counted.
Republicans have been pushing the conspiracy theory that Sharpies were causing votes to not be counted. Maricopa County officials said Sharpies were, in fact, a better ink because it dried quickly and wouldn’t smudge on glass on the voting tabulation machines.
The Republican Attorney General Mark Brnovich, who has supported Trump, initially tweeted that his office had received hundreds of complaints about Sharpies, but 24 hours he reversed his stance, tweeting, “Based on correspondence and conversations with Maricopa County officials, we are now confident that the use of Sharpie markers did not result in disenfranchisement for Arizona voters. We appreciate the county’s prompt insight and assurances to address public concerns.”
Georgia – challenge over 56 ballots
The Trump campaign had alleged that the “proper chain of custody” wasn’t maintained for 56 ballots during the canvassing process — a claim the judge found was unsupported and dismissed.
Michigan – challenge over 90 ballots
There are no current legal challenges remaining. The one case where Republicans challenged the observation process, and floated a claim about workers in Detroit changing the date of ballots received has been dismissed by the state judge. And that challenge only disputed around 90 ballots.
When a Republican poll challenger alleged fraud in a sworn affidavit, Court of Claims Judge Cynthia Stephens told Republican lawyers she couldn’t credibly rely on the challenger’s claim that election workers in Detroit had changed the date on mail-in ballots to comply with the November 3 deadline.
“We’ve got an affidavit that is not first-hand knowledge!” Stephens said.
In the affidavit, a poll challenger for the Republican party named Jessica Connarn was told by a Republican poll challenger that an election worker at the TCF Center in Detroit was “nearly in tears because she was being told by other hired poll workers at her table to change the date the ballot was received when entering ballots into the computer.” Connarn alleged that she also talked to the election worker, and submitted a photograph of a note on which the fellow poll worker indicated she was instructed to change the date ballots were received from November 4 to November 2.
But Stephens viewed the claims in the affidavit as hearsay, asking Republican attorneys, “You want me to find a scintilla of truth” based on hearsay?
Nevada federal lawsuit
Republicans sued state officials in Nevada late Thursday, claiming in federal court that “lax procedures” to authenticate mail ballots have diluted the vote in Clark County, home of Las Vegas, where Biden is holding a lead – without providing any evidence to show that’s the case.
In a similar court case earlier this week, filed by the same Republican lawyers, no evidence of voter fraud was brought before a judge, and that case was dismissed. In both cases, the plaintiffs are asking that the ballot counting process be stopped and use of signature matching software be stopped and that observers be granted greater access.
More than 70%of Nevada’s voters live in Clark County. Registrar of Voters Joe Gloria has testified without the ballot matching software, the county would not be able to finishing counting on time.
CNN’s Erica Orden, Christina Carrega, Evan Perez and Stephanie Becker contributed to this report.