WASHINGTON — With time and options running out, President Donald Trump's campaign is peppering states with a flurry of legal challenges aimed at slowing down the vote certification process — a longshot strategy that has almost no chance of reversing President-elect Joe Biden's victory.
The campaign is seeking to halt the vote count in Pennsylvania, Michigan and Arizona until they can have partisan poll watchers inspecting the voting process to ensure "illegal" ballots are not counted. But they have presented no evidence that illegal ballots have been counted, let alone counted in so great a number that it would make a difference in the loss to Biden.
Trump's own administration issued a resounding rebuke Thursday to his claims of fraud.
"There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised," according to the Cybersecurity & Infrastructure Security Agency, which spearheaded federal election protection efforts. "The November 3rd election was the most secure in American history."
States are still counting and certifying the results of the election, which is normal in the days after presidential races. When the count is completed, each governor is required by law to prepare "as soon as practicable" documents known as "Certificates of Ascertainment" of the vote. The certificates list the electors' names and the number of votes cast for the winner and loser. The certificates, carrying the seal of each state, are sent to the archivist of the United States.
Dec. 8 is the deadline for resolving election disputes at the state level. All state recounts and court contests over presidential election results are to be completed by this date. Some states set earlier deadlines of late November for certification.
But Matt Morgan, the Trump campaign's general counsel, said Thursday evening they were seeking to halt the certification until they can get a better handle on where the vote tallies are in states and whether they would have the right to automatic recounts.
"Our legal strategy is to proceed to bring resolution to any of our issues prior to final certification," Morgan said. He said the strategy would reveal itself to be successful in time. "You can't eat an entire apple in one bite."
The campaign's lawsuits center on allegations made by partisan poll watchers that they were not allowed proper access to view ballot counting and therefore they believe something illegal may have happened. Poll watchers do not have the authority to audit the ballot process and most are volunteers. Those allegations have no evidence to back them up, and judges have already dismissed many of the claims.
In Michigan, Judge Cynthia Stephens dismissed one filing as "inadmissible hearsay within hearsay." When Trump's lawyers appealed, the next court kicked the filing back as "defective."
The effort to pepper states with lawsuits is also aimed at providing Trump with an off-ramp for a loss he can't quite grasp. Trump aides and allies also acknowledged privately the legal fights would — at best — forestall the inevitable, and some had deep reservations about the president's attempts to undermine faith in the vote.
But they said Trump and a core group of allies were aiming to keep his loyal base of supporters on his side even in defeat, especially going into a Georgia special election where the control of the U.S. Senate hangs in the balance.
Efforts to try to reverse the popular vote have been pushed by some Trump allies in conservative media but not directly embraced by the president's campaign. Any such effort to subvert the popular will would require coordinated and simultaneous action across multiple battleground states — a level of sophistication that has thus far eluded the Trump campaign.
But if the litigation somehow succeeds, all the better.
In Arizona, Biden holds a lead of about 11,000 votes over Trump as of Thursday evening, with about 17,000 ballots left to count across the state. The lawsuit there seeks a halt in the certification in Maricopa County, Arizona's most populous.
The attorneys defending election officials argue Trump is in effect seeking a recount, which isn't allowed in Arizona unless the margin is fewer than 200 votes or less, or one-tenth of 1% of the votes cast, whichever is the smaller number. The Trump campaign said it isn't seeking a recount — it's asking for the counting of ballots that were never tabulated.
Trump campaign attorney Kory Langhofer told the judge that the lawsuit challenges good-faith errors made in the counting of ballots. "We are not alleging fraud in this lawsuit," Langhofer said. "We are not alleging that anyone is stealing the election here."
On Dec. 14, electors vote by paper ballot in their respective states and the District of Columbia. Thirty-three states and D.C. have laws or party regulations requiring electors to vote the same way the popular vote goes in the state. In some states, rogue electors can be replaced or subjected to penalties, according to the Congressional Research Service. The votes for president and vice president are counted and the electors sign six "Certificates of the Vote." The certificates, along with other official papers, are sent by registered mail to various officials, including the president of the Senate.
The certificates must be delivered to the designated officials nine days later. If they are not delivered, the law provides alternative avenues for getting the results to Washington.
The House and Senate hold a joint session to count the electoral votes on Jan. 6. If one ticket has received 270 or more electoral votes, the president of the Senate, currently Vice President Mike Pence, announces the results. With the verdict in some states still to come, Biden already has won enough states to be awarded more than 270 electoral votes.