The Trump campaign racked up a string of legal losses Friday in its nit-picking challenges to the election outcome, while adding another lawsuit that experts say is either a non-starter or a pointless delaying tactic.
Hours before the president’s campaign dropped its infamous “Sharpie” suit in Arizona, the state GOP lodged a new legal brief that could slow the certification of the count in Maricopa County, home to Phoenix.
The claim hinges on whether the obligatory audit of the results should be based on a sample from the 175 voter centers—where, for the first time this year, any resident of the county could cast their ballot—or on the 748 traditional local precincts, as the Republican brief insists the law requires, despite guidance from the Secretary of State to the contrary.
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“It's an issue only a data analyst or an elections lawyer can love,” state GOP counsel Jack Wilenchik said. “But we’ve got a lot of pressure to make sure this election is done by the book.”
Wilenchik said that precinct information for the ballots cast at voting centers is probably irrecoverably lost. This would mean that—if his lawsuit were successful—it would make the usual audit impossible, and thus prevent the certification of the votes in Maricopa County until authorities could complete another, lengthier validation process, such as a larger-scale hand count.
According to one of the state’s leading legal scholars, the lawsuit is just another flimsy effort to slow the process of officially declaring the state for Joe Biden. Paul Bender, dean emeritus of Arizona State University’s Sandra Day O’Connor School of Law, argued that the hyper-technicality of the Republican objection and the importance of certifying the result made it likely the lawsuit would fail early next week.
“I can't imagine a judge would say it’s that important a part of the statute,” said Bender, a veteran of the Johnson, Nixon, and Clinton administrations who also serves as a top judge in the court system of two of the state’s tribal nations. “He may be right, but I very much doubt it's going to win.”
Even in the unlikely event the suit succeeded, Bender noted, it would only slow, not prevent, the confirmation of Biden’s victory in Arizona. And even if somehow the Copper State’s 11 electoral college votes got peeled away from the Democratic nominee’s tally, he would still have 295 left—25 more than needed to become president.
“I think they want to delay things,” Bender said. “Why they want to delay things, I don't know. It's not going to change the result.”
Bender’s remarks echo those made by attorneys from both parties about Republican lawsuits in Michigan, Nevada, and Pennsylvania. These suits have relied largely on unsubstantiated and insubstantial claims about violations of election law, none of them on a scale that would reverse the president’s deep deficits in each of those states.
Several of these suits failed on Friday. In abandoning its Arizona Sharpie case, the Trump campaign effectively admitted that, whatever happened with the ballots voters filled in with felt-tip pens, it did not affect the final tally of the vote.
Meanwhile, a Michigan court tossed a lawsuit by a pair of GOP poll watchers that sought to prevent the certification of the votes coming out of Dearborn and Detroit. Meanwhile, judges in Philadelphia and nearby Montgomery County rejected a combined six legal actions.
The campaign notched one victory in the Keystone State, requiring authorities in Pittsburgh’s Allegheny County to set aside all of 2,349 ballots. That came after a Thursday win that threw out an extension that allowed Pennsylvanians three extra days to correct missing proof of identity on postal votes. But each of these cases deals with just a few hundred or a few thousand ballots—nothing that could overcome Biden’s 63,000-vote advantage in the state.
Meanwhile, on Thursday, the prestigious firm Porter Wright dumped Trump’s federal lawsuit to prevent the certification of Biden’s triumph in Pennsylvania. An appearance on the state’s motion to dismiss the case is scheduled for late Monday. A similar suit in Michigan received a judge Friday, but not yet a scheduled hearing.
