Trump’s Lawyers vs Democracy

For months before the November 3, 2020, presidential election Donald Trump refused to say he would accept a loss in the vote. The actual results, with Joe Biden flipping six states that had voted for Trump four years before–Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin–triggered a flurry of activity by Trump and his allies to find some way to reverse the vote and declare him the president.

Initially, Trump argued the result had to be fake because he knew he had won. This argument seemed to convince many (or according to at least one poll, most) of Republicans. The argument’s obvious circularity made it unconvincing to others.

Trump also pointed to timing he considered suspicious. In several states, including Wisconsin, early returns had Trump leading. In the middle of the night, the tide suddenly turned, he claimed, and Biden took the lead.

The trouble with this argument is that the pattern was what everyone expected. Trump had been attacking absentee voting for months before the election as an invitation to fraud. Meanwhile, polls reported that Democrats were more concerned about the pandemic than were Republicans. As a result, the anticipated outcome was that in-person voting would be weighted towards Trump voters while absentee and early voting would have more Biden votes.

The Wisconsin Legislature (along with those in Michigan and Pennsylvania) had refused to allow poll workers to start processing ballots (such as checking signatures and opening envelopes) before election day. The result was that in-person votes, where Trump was strong, were tabulated during the day. In Milwaukee and some other locations, by contrast, absentee and early votes were tabulated later that night.

Trump and his allies have brought numerous lawsuits in both federal and state courts challenging the reported and now certified vote counts. So far, the Trump lawsuits have been remarkably unsuccessful.

Among the suits brought by Trump allies was Langenhorst v. Pecore, which I discussed in a previous column. The same day that a court hearing was scheduled, all three plaintiffs submitted notices of voluntary dismissal. This is perhaps unsurprising. The plaintiffs’ brief is heavy on the discussion of the dangers of voter fraud but offers no example of fraud in the November Wisconsin election.

Apparently because of the decision not to go ahead with the suit, a donor named Fred Eshelman has sued True the Vote, demanding that it return his $2.5 million contribution towards its “comprehensive plans to investigate, litigate, and publicize illegal balloting and other election fraud.” Instead, Eshelman complains, he received only “vague responses, platitudes, and empty promises of follow-up that never occurred.”

Another lawsuit brought by Trump allies is called Wisconsin Voters Alliance v. Wisconsin Elections Commission. To get an idea of the commitment to democracy of the Wisconsin Voters Alliance, consider their plea to the Wisconsin Supreme Court, quoted directly from their brief:

The petitioners seek the following relief in this petition:

1. Issue a declaratory judgment that Wisconsin election officials’ materials violations of Wisconsin law and the Elections Clause rendered the results of a close Presidential election in Wisconsin null.
2. Issue an injunction enjoining the Wisconsin Elections Commission or any election body in Wisconsin from certifying the election so that the state legislature can lawfully appoint the electors.
3. Issue an injunction requiring the Governor to certify the electors under 3 U.S.C. 6 appointed by the state legislature.

In other words, the Wisconsin Voters Alliance wants the court to take away from Wisconsin voters the selection of electors and transfer it to the highly gerrymandered Wisconsin legislature. Part of the problem is there is little of Wisconsin in the Wisconsin Voters Alliance. Their lawyers, for instance, are based in Minneapolis. In their support of overturning the election, they are closely allied with the Amistad Project of the Thomas More Society which is based in Chicago.

The brief contains a table purporting to show the number of improperly voted ballots. It does not discuss how these estimates were arrived at, other than a reference to “their expert Matthew Braynard.” Following Trump’s loss in the election, Braynard, a member of the Trump 2016 data team, established the so-called “Voter Integrity Fund.” The Philadelphia Inquirer reports, based on its conversation with Braynard, that the Fund is run by government employees and former Trump campaign staffers who analyze voter data in the six states that Biden flipped.

The Inquirer goes on to report that the fund has engaged three call centers where over a hundred paid operators will call voters and has purchased data on millions of voters from six states and is cross-referencing names of people who voted absentee or by mail with the national address change registry and the Social Security death registry,

Assuming that the claims made in the Wisconsin Voters Alliance brief reflect Braynard’s survey, it is doubtful that the survey will generate useful data. For example, the brief estimates that there were 14,426 Wisconsin “ballots requested in the name of a registered Republican by someone other than that person” and 12,071 “Republican ballots that the requester returned but were not counted” in the 2020 election. This is totally puzzling because Wisconsin has no registered Republicans—and no registered Democrats, for that matter.

There are several other questionable issues that offend the Wisconsin Voters Association and the Thomas More Society:

• With the pandemic more people than usually apparently said they were “indefinitely confined” and did not need to submit a photo with their application for an absentee ballot.
• They are particularly offended by a major donation from Mark Zuckerberg to Milwaukee, Madison, Racine, Kenosha and Green Bay to upgrade their election systems. Their objection rests on the false claim that only the state can accept gifts and the argument that allowing Milwaukee to help its residents to vote safely hurts voters in the rest of the state.
• When voting in person, one has the advantage that the scanner will catch many errors (such as voting for two candidates for the same office or using a checkmark to indicate one’s choices) and offer the voter a chance to submit a corrected ballot. Those voting early or absentee miss out on this second chance. A partial solution is “curing”  the problem: an election worker either contacts the voter or, when the voter’s intention is clear, corrects the ballot. Under Wisconsin’s system of local control of elections, curing is optional. The Voters Association objects to curing: “Due to the clerks’ illegal curing of legally rejected absentee ballots, the City of Milwaukee for the November 3 election caused a lower than legally-required absentee ballot rejection rate.” Where does the law require a rejection rate? A low rejection rate would seem to be good thing.

In a recent, undated press release, the Amistad Project of the Thomas More Society announced it will work with the Trump administration to file federal and state lawsuits challenging the presidential election results in Wisconsin, Pennsylvania, Michigan, Nevada, Georgia, and Arizona. The Project then goes on to describe a supposed conspiracy to throw the election to Biden.

The next chart compares the original vote totals in Milwaukee’s 327 wards to those found in the recount. Except for ward 315, where uncounted ballots were found in the recount, there is almost perfect alignment between the original vote counts and those in the recount. This reflects the steep challenge that Trump and his allies face in trying to argue that Trump received the most votes.

It also helps explain why Trump and his allies are trying a different tack: to convince judges to throw out the votes of millions of people in Wisconsin and the other six states because of some aspect of how the election was managed. A judge who agreed with this strategy would also be agreeing to end democracy in the United States.