Even before Democrat Joe Biden was projected to be the winner of the presidential election, President Donald Trump’s campaign and Republican allies started pursuing lawsuits over voting and ballot counting.
Cases filed in five key states alleged ballots had errors because voters were required to use Sharpies, observers didn’t have enough access to monitor ballot counting, and late-arriving mail ballots were improperly mixed with legal votes.
Judges have dismissed most cases quickly, often for lack of evidence.
However, the U.S. Supreme Court could issue a ruling at any time on the Republican Party of Pennsylvania’s request for an emergency injunction to block processing of mail and absentee ballots that were received during the three days after the normal deadline on Election Day. The high court could also decide to conduct a full review of GOP arguments that the deadline extension was unconstitutional.
Here’s what has happened with voting lawsuits in key states, starting with the state with the most action.
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The Trump campaign, Republican campaign committees and other plaintiffs have filed a barrage of state lawsuits and one federal lawsuit in efforts to block Pennsylvania ballot counting, negate some mail and absentee ballots and even prevent Pennsylvania Gov. Thomas Wolf and Secretary of State Kathy Boockvar from certifying the state’s election results.
Some of the lawsuits allege Boockvar illegally exceeded her authority by giving guidance to county election boards that violated state election deadlines and other requirements.
They also allege Republican election observers were blocked from getting close enough to observe potential problems with ballot counting and that there were irregularities with ballot “curing,” the process of correcting mistake made by voters.
The federal case, filed by the Trump campaign on Nov. 9, distills all of the allegations and represents a sweeping challenge to mail voting. Most mail ballots went heavily for Biden in Pennsylvania. By running a “two-tiered” voting system with different requirements for in-person and mail voters, the lawsuit argues, the state’s election system violated the U.S. Constitution.
However, the court complaint and the Trump campaign’s motion for an injunction, filed on Nov. 12, contain little evidence of widespread irregularities. Instead, the motion asks the court to order a “brief pause” in Pennsylvania’s ballot certification process, enough time to confirm a “well-founded theory that Pennsylvania election officials counted tens of thousands of invalid votes.”
Attorneys for the Secretary of State filed a motion to dismiss the case, arguing that many of the claims amount to “minor perceived election code violations.”
If the suit delays the certification of election results, it could affect the Electoral College’s process of formally choosing the new president. But legal experts say the case has little chance of succeeding. They cite courts’ wariness of invalidating legally cast ballots and note that mail voting is constitutional and common throughout the country.
In contrast, the Trump campaign won a minor victory in a state appeals court battle over the deadline for mail and absentee voters to supply IDs to validate their ballots. Boockvar pushed the deadline back three days, from Nov. 9 to Nov. 12.
A Commonwealth Court of Pennsylvania ruling said Boockvar “lacked statutory authority” to change the deadline. The court ordered county boards of elections not to count those ballots, which had been segregated in the state’s tallies. It could not immediately be determined how many ballots were affected by the ruling.
Arguably the most consequential Pennsylvania cases involve challenges to a Pennsylvania Supreme Court decision that upheld a three-day extension of the deadline for accepting mail and absentee votes.
Opponents of the extension have argued it was unconstitutional because it disregarded the deadline that Pennsylvania lawmakers enacted in 2019. The Secretary of State’s office has argued the extension was a reasonable accommodation given the coronavirus pandemic and mail delays.
The Pennsylvania Supreme Court upheld the extension.
Now, the Republican Party of Pennsylvania has asked the U.S. Supreme Court to order county election boards to segregate and take no action on mail and absentee ballots received after Election Day.
Supreme Court Justice Samuel Alito, who handles emergency appeals from Pennsylvania, on Nov. 6 ordered county elections officials to separate mail-in ballots that arrived after 8 p.m. on Election Day.
The high court could issue a decision on the injunction request at any time, as it considers a broader application for a full review of the Pennsylvania Supreme Court’s ruling.
However, the outcome of the case may have little impact on Biden’s apparent victory in Pennsylvania. In a Nov. 7 filing, the Pennsylvania Secretary of State said all election boards had kept late ballots separate and tallied them apart from others. That means late ballots were not included in the totals that media organizations relied on to project Biden as the winning presidential candidate.
But the legal battle continues. On Nov. 9, officials from Ohio and other states filed friend of the court briefs that backed the Pennsylvania GOP’s application for an emergency injunction.
In a lawsuit filed in state court, the Trump campaign has argued one of its observers was kept too far away from ballot counting in Philadelphia.
A trial-level court ruled there had been no violation of the state’s election code. However, an appeals court overturned that ruling and directed that the observer be allowed to get within six feet of the counting process, subject to COVID-19 protections. On Nov. 9, Pennsylvania’s Supreme Court agreed to consider a Philadelphia Board of Elections appeal of that ruling.
A lawyer for the Trump organization acknowledged in a court filing Friday that a civil complaint alleging ballots in Maricopa County were improperly tabulated is moot because of Biden’s lead in the state.
The president’s campaign and the Arizona Republican Party had sought an injunction to block certification of election results, claiming some votes were wrongly nullified by poll workers after tabulation machines flagged defective ballots.
The lawsuit alleged that “up to thousands” of ballots were improperly processed in Maricopa County, where Phoenix is located. Because Trump was favored by those who voted on Election Day, plaintiffs allege, those errors would have benefited Biden.
The lawsuit included affidavits from voters and poll workers saying voting machines flagged some ballots for having multiple selections in a single race, purportedly caused by Sharpie pens used to mark ballots. The suit contended voters weren’t informed of the problems or poll workers processed the ballots anyway. When a ballot has multiple choices in a race, no vote is tallied in that race.
State elections officials denied ballots were tabulated improperly. They say Sharpies work best because they dry instantly and don’t smear. In a letter to Attorney General Mark Brnovich, Secretary of State Katie Hobbs’ office decried “Sharpiegate” as an “unfounded conspiracy theory.”
During a hearing this week, an attorney for the county said voting machines flagged 191 ballots for an “overvote” in the presidential race, out of 155,860 cast on Election Day. (The county had said earlier that number was 180.) Biden’s lead, with nearly all the ballots counted, is about 11,000.
During a hearing Thursday, Kory Langhofer, an attorney for the Trump campaign, said plaintiffs were not alleging fraud. Instead, they were raising concerns about a limited number of “good faith errors.”
Meanwhile, a top state lawmaker has called for an independent expert to evaluate the vote count. In a letter to Hobbs, Senate President Karen Fann, R-Prescott, did not suggest the results are in question, but a review would “help to restore credibility and hopefully end the current controversy over fairness in the election process.”
The Trump campaign and Georgia Republicans went to court the day after the election, alleging the Chatham County Board of Elections had improperly intermingled ineligible ballots with valid ones.
A judge dismissed the case the next day for lack of evidence.
Colin McRae, chairman of the Chatham County Board of Registrars, told a judge he looked at all 53 ballots in question, and they all had been received before the 7 p.m. deadline on Election Day.
He said 41 absentee ballots were received after the deadline and were placed in a secure location to ensure they were not counted.
A circuit court on Friday denied a request to block Wayne County from certifying election results. The lawsuit alleged election officials backdated some ballots that were received late and excluded challengers from a “meaningful opportunity” to observe ballot processing. The judge on Friday said delaying certification would have been an “unprecedented exercise of judicial activism for this Court.”
A federal lawsuit filed by the Trump campaign makes similar claims and includes affidavits from more than 100 people claiming a range of irregularities, from the improper tabulation of votes to denying observers access to counting. The claims, however, did not include evidence of widespread fraud, state officials said.
A Michigan judge similarly threw out a Trump campaign lawsuit Nov. 5 seeking an order that the Secretary of State provide “meaningful access” for observers to watch ballot counting and allow it to view videotaped surveillance of ballot drop boxes.
The judge said the secretary had already issued a directive providing access to observers, the counting was complete, and there was no legal basis to provide videos. The judge dismissed as hearsay an affidavit from a Republican poll watcher in Detroit alleging she heard about a date on a ballot being improperly altered.
The Trump campaign has appealed the case.
Republican lawmakers in Michigan have launched an investigation into the election, issuing subpoenas to state elections officials. GOP state Rep. Matt Hall, R-Marshall, said the investigation is needed “to provide needed clarity to concerned residents,” but House Minority Leader Christine Greig, D-Farmington Hills, said it was “a desperate attempt by Republican legislators to cast a shadow of doubt over the legitimacy of our election.”
An election reporting error — since corrected — in one Michigan county has helped fuel a conspiracy theory amplified on far-right sites and on Twitter by President Trump. The day after the election, it appeared Biden had beaten Trump by 3,000 votes in Antrim County. The county posted revised figures Friday showing Trump beat Biden there by about 2,500 votes. The Michigan Secretary of State said there had been a computer error.
Another error in vote counting in Rochester County was corrected. A Republican city clerk supervised a vote count that wrongly gave victory to a Democrat. A Democratic county clerk’s staffer caught the error and requested a correction, handing the win to a Republican.
Republicans have brought cases in state and federal court alleging poll watchers had inadequate access to observe ballot counting and that there are problems with software used to match signatures on mail ballots.
In one case, the Nevada Supreme Court declined to stop the counting of mail-in ballots in southern Nevada and dismissed the case after the Trump campaign and Nevada Republicans reached an agreement with elections officials allowing additional observers to vote counting. A similar case was settled by agreement that more poll watchers could keep an eye on proceedings at the Clark County election center.
A federal judge denied a GOP request to stop Nevada elections officials from using signature-matching software to process ballots. The judge said there was little or no evidence to suggest the signature-matching programs were faulty, and perhaps even less evidence to suggest a human could do the job better.
The case, filed against Nevada elections officials two days after the election, hinges in part on a claim by a 79-year-old blind Las Vegas resident who said she wasn’t allowed to vote in person because an absentee ballot with her signature had already been cast.
The Nevada Republican Party has asked the Department of Justice to investigate its allegation that about 3,000 nonresidents cast ballots in the state. Clark County Registrar of Voters Joseph Gloria said he would look into the allegation, but out-of-state voters are common, including those serving in the military, university students and elected officials in Washington, D.C.
The complaint, he said, “is based on something that happens regularly. You don’t have to live here to be eligible to vote here.”
The federal lawsuit over signature matching also alleges ineligible voters cast ballots, but doesn’t provide any evidence.
Contributing: USA TODAY Network reporters Paul Egan, Dave Boucher and Bill Laitner of the Detroit Free Press; Anjeanette Damon, James DeHaven and Ed Komenda of the Reno Gazette-Journal; Andrew Oxford and Maria Polletta, Arizona Republic
This article originally appeared on USA TODAY: Most Republican lawsuits challenging election results in battleground states haven’t gone far