Even before Election Day, President Donald Trump had been vowing to swarm Pennsylvania and its largest city with lawyers to contest the results in a state that has proven decisive to the outcome of the election. Those threats have only been amplified in the days since the president’s loss.
But despite red-hot rhetoric in recent days from the president and many of his surrogates, including lawyer Rudy Giuliani, about a Democratic conspiracy to steal the election through fraud, the campaign and its lawyers have yet to make even a single allegation in court of any vote being deliberately cast illegally. Instead, the suits have sought to raise suspicions surrounding Pennsylvania’s process for voting and tallying the results — much of it governed by laws passed by the state’s Republican-held Legislature.
On Monday, the campaign filed a federal lawsuit in Harrisburg collecting all of their complaints about the process — first raised in separate challenges before judges across the state last week last week — and asked the judge to bar the state from certifying its election results.
But with Joe Biden’s edge in the Pennsylvania race hovering around 45,000 votes late Monday it’s unlikely any individual case will impact enough votes to make a difference unless GOP lawyers are able to convince the judge hearing their latest suit that, taken together, all of them are enough to undermine public confidence in the results.
Here’s a breakdown of the issues around which Trump has focused his legal challenges, so far:
Late-arriving mail ballots
What’s at issue: Should potentially hundreds of mail ballots count if they were postmarked by Election Day and arrived after polls had closed but still within the three-day postelection grace period established by Pennsylvania’s Supreme Court?
The backstory: In a September ruling, Pennsylvania’s highest court extended the deadline for mail ballots to be received. The court ruled in a case in which Secretary of State Kathy Boockvar, who oversees elections, and the state Democratic Party argued that mail delays might result in some ballots sent by Election Day not arriving until after polls close Nov. 3, normally the deadline to cast a ballot under state law. In its 4-3 opinion, the court created a three-day grace period for ballots postmarked by Election Day to arrive and be counted, which ended 5 p.m. on Nov. 6. It said that the extraordinary events of the last year, notably the COVID pandemic, justified relaxing the rules, much as a natural disaster would.
What the parties say: Various Republican groups, including the Trump campaign, have argued that the court decision usurped the intent of Pennsylvania’s Republican-held Legislature, which is tasked with setting the rules of elections. They’ve argued that any votes that arrived after 8 p.m. on Nov. 3 should be thrown out.
Boockvar and the Democrats maintain that the extension was justified, given the widespread delays in mail delivery in Pennsylvania and across the country. They argue that the courts should defer to any solution that makes it easier for people to vote and for those votes to be counted.
Where the case stands: Currently, all eyes are on the U.S. Supreme Court, where the Trump campaign and various GOP groups have urged the justices to take up the case and strike down the ruling establishing the grace period.
The nation’s highest court declined to act before Election Day, but in making that decision, four conservative justices signaled that they might be open to reconsidering the case. At Republican urging, Justice Samuel A. Alito Jr. — who oversees emergency matters for the Supreme Court arising out of Pennsylvania — last week ordered the state’s counties to keep separate tallies of mail ballots that came in after Nov. 3. Now, the parties must wait to see whether Alito and his colleagues on the court will decide to act.
The Trump campaign also cited this issue in its suit Monday asking a federal court in Harrisburg to stop the certification of the state’s vote.
Potential impact: State officials have not said how many votes arrived within the grace period. Boockvar has said some counties received none, while larger counties received as many as a couple hundred. In Philadelphia, election Commissioner Al Schmidt said, roughly 1,000 mail ballots arrived during the three-day window.
But even if the U.S. Supreme Court were to take up the case and strike down the deadline extension for future elections, that would not necessarily mean that they would also invalidate votes in the 2020 race, GOP election lawyer Ben Ginsburg said Saturday.
“That would result in the disenfranchisement of a large number of voters who simply followed the instructions they were given by election administrators,” he told CNN.
GOP counting monitors
What’s at issue: Were enough GOP monitors permitted to be close enough to the vote counting in Philadelphia and other counties to meaningfully observe whether any suspect ballots were added to the county’s final tallies?
The backstory: By law, campaigns and political parties are entitled to have representatives in the rooms where votes are being counted to keep the process honest. Since counting began on Election Day, the Trump campaign and GOP monitors have consistently maintained they were kept too far away from to meaningfully observe.
In Philadelphia, both Republican and Democrat monitors were kept behind a waist-level barrier anywhere from 13 to more than 100 feet away from the tables at which votes were being tallied. On Thursday, the Pennsylvania Commonwealth Court ordered city election administrators to allow both parties' monitors within six feet of the counting.
What the parties say: Trump and Republicans have continued to press the claim that even with accommodations ordered by the Commonwealth Court their monitors still were unable to inspect the vast majority of the ballots being tallied. And they have vowed to file more lawsuits challenging the vote count in Philadelphia and other parts of the state.
Philadelphia election officials maintain that the rules they set up for canvassing monitors were applied equally to both sides and were consistent with state law. When Commonwealth Court ordered the monitors be allowed closer, city officials temporarily halted counting on Thursday to comply. Extra precautions, they say, also were needed this year to protect vote counters from exposure to the coronavirus.
Where the case stands: Court activity around this claim has died down for the moment — but Trump and his surrogates have been loudly vowing to file more legal challenges.
Currently, there are three open cases regarding monitor-access to the counting of votes in Philadelphia. The city has appealed the earlier Commonwealth Court order and the Pennsylvania Supreme Court agreed Monday to take up the case. Meanwhile, a Trump campaign suit in federal court in Philadelphia remains open. But there has been no activity in that case since the judge rejected the campaign’s request to get involved, urging both parties to work out a solution among themselves.
The Trump campaign suit filed Monday in Harrisburg raises questions about canvassing monitor access in other counties as well, including Allegheny, Delaware and Chester Counties.
Potential impact: Even if the Trump campaign were to prevail in a lawsuit challenging the level of access their monitors had to the vote-count, that, alone, would not invalidate any votes. Though vote counting continues, the vast majority of ballots have already been tallied in the city.
Corrected mail ballots
What’s at issue: Should voters who incorrectly submitted their mail ballots — by forgetting to sign the outer envelope, failing to put their ballot in a secrecy envelope or any other technical mistake — have been given a chance to correct those errors before Election Day so their vote would be counted?
The backstory: Some Pennsylvania counties — including Montgomery and Bucks — allowed voters to correct mistakes on incorrectly filed mail ballots. In some cases, county officials called to alert voters directly their ballots were in danger of being disqualified. In others, counties released lists of defective mail ballots to both political parties, allowing them to make those contacts. However, not all counties allowed voters to “cure” incorrectly filed ballots, despite statewide guidance to do so from the Pennsylvania Department of State.
What the parties say: Republicans have challenged multiple aspects of the “cured” ballot issue in lawsuits in state, county and federal courthouses. They’ve argued that because not all counties followed the same procedure, such “cured” votes should be thrown out to avoid favoring voters who were allowed to correct mistakes. They’ve also argued any inspection of outer envelopes by county officials violated state laws that say mail votes cannot be processed before Election Day.
Boockvar and various Democratic groups maintain that all of Pennsylvania’s 67 counties were encouraged to allow voters to “cure” incorrectly filed ballots to ensure the votes they intended to cast were counted. Counties that chose not to allow it made that decision on their own and should not now be able to claim that their voters were put at a disadvantage as a result, Democrats say. What’s more, various county officials have said, in counties that did allow curing the voters were not allowed to change how they actually voted — just correct the mistakes in how their ballots were filed.
In some cases, Republicans worry, that voters who were warned about their faulty mail ballots may have shown up and voted in-person at the polls on Election Day. They argue that effectively would be voting twice, but so far courts have met this argument with disdain, pointing out that if their mail ballot had been disqualified then that doesn’t count as their vote.
Where the case stands: There are a number of lawsuits pending challenging this issue, including a federal case focused on Montgomery County’s policy, Common Pleas Courts cases filed in Bucks and Northampton Counties, and a wider case, potentially affecting cured ballots across the state, filed to the Pennsylvania Commonwealth Court. Additionally, the Trump campaign’s lawsuit filed Monday in Harrisburg cites the curing of ballots in some counties as just one reason that voters were treated differently depending upon where they lived.
Republicans have asked for different remedies in each of these cases, ranging from disqualifying small pockets of votes in the county-level cases to, in the statewide case, throwing out all cured ballots and “provisional” ballots cast in-person at the polls by people who had previously submitted mail votes incorrectly.
Potential impact: The case likely to have largest impact is the one challenging Boockvar’s guidance and covering all counties in the state that currently sits before the Commonwealth Court. After a hearing Friday in Harrisburg, Judge P. Kevin Brobson rejected GOP requests to exclude all votes statewide by people warned of deficiencies in their mail ballots. But he ordered that county officials keep separate ballots such ballots, pending further consideration from the court.
Despite that, it’s still unclear just how many cured ballots were counted across the state or how many voters showed up at the polls to vote after being warned their mail ballots were in danger of being disqualified. The number of cured ballots in one of the state’s largest counties — 98 in Montgomery County, according to elections administrators — suggests that the statewide sum is not particularly large.