Trump keeps making arguments about the election on Twitter that he won't make in court
- President Donald Trump is waging a political war to discredit the results of the 2020 presidential election, claiming he's the victim of widespread voter and electoral fraud.
- His election lawyers, in hundreds of pages of lawsuits, have alleged no such thing.
- Even if the Trump campaign won resounding victories in all of its lawsuits, Joe Biden would still be the next president of the United States.
- Visit Business Insider's homepage for more stories.
While President Donald Trump wages a political war to declare himself the rightful winner of the 2020 presidential election, his lawyers … aren't doing that.
On Twitter, Trump has called for election officials to discount hundreds of thousands of legally cast votes, an argument he premises on the false claim that Republican election observers were not permitted to do their jobs.
"Nobody wants to report that Pennsylvania and Michigan didn't allow our Poll Watchers and/or Vote Observers to Watch or Observe," he tweeted on Wednesday. "This is responsible for hundreds of thousands of votes that should not be allowed to count. Therefore, I easily win both states. Report the News!"
(In fact, Republican party election observers did observe ballot counting throughout both states.)
As Trump tries to persuade the public that votes should not be counted, so far he hasn't made the same claim in court.
His campaign has filed federal lawsuits in each state, running to hundreds of pages each. In both of the lawsuits, the Trump campaign seeks a ruling that would stop Pennsylvania and Michigan from certifying their electoral votes, which President-elect Joe Biden is projected to win.
The lawsuits allege other problems about the electoral process. They claim that Republican observers were not able to stand close enough to election workers because of coronavirus restrictions, that voter rolls are outdated, and that mail ballots were processed differently from in-person ballots in a way that's unfair.
And because of all of these alleged irregularities, they argue, the states should delay in certifying their votes.
But in none of those hundreds of pages does the Trump campaign argue that votes should be thrown out.
It's part of a pattern
It's a pattern that comes up a lot with Trump's claims about the presidential election.
As much as he says that the election was unfair, and that its results should be invalidated, and that he was the actual winner of the 2020 election, his lawyers have not actually made these arguments in front of judges, who have the power to make rulings based on election laws.
For example, Trump said in a tweet two days after the November 3 election that "all of the recent Biden claimed States will be legally challenged by us for Voter Fraud and State Election Fraud."
And yet, in the five lawsuits his campaign had filed at that time, he had alleged voter fraud in zero of them.
In the federal lawsuit in Pennsylvania he filed days later, his campaign alleged that voter fraud may have happened in two counties — both of which overwhelmingly voted for him. The lawsuit also challenged the validity of only 14,000 votes in the state, but Biden is ahead in the state by around 60,000 votes, according to Decision Desk HQ data published by Insider.
In the Michigan lawsuit, the campaign argues that the way the state executed its voting laws may have opened the door to voter fraud and election fraud, but it does not bring forth an actual example of such fraud happening, and none of the affidavits from election watchers allege any instances of fraud.
On Tuesday, Trump tweeted an opinion piece reportedly containing false news from right-wing outlet The Federalist titled, "I Was In Philadelphia Watching Fraud Happen. Here's How It Went Down" (none of the behavior described in the article is fraud) and tweeted, "Those hundreds of thousands of votes should not be allowed."
On Wednesday, a judge asked a lawyer for the Trump campaign in another Pennsylvania case, point-blank, whether it had anything to do with fraud.
"To my knowledge at present, no," he responded.
The rhetoric from Trump's allies doesn't match the lawsuits, either
Rudy Giuliani, Trump's personal lawyer, has also floated explosive claims about the election process. He said on Twitter that the Trump campaign would be suing to "invalidate hundreds of thousands of fraudulent ballots" in Michigan with affidavits to back them up.
But the Michigan lawsuits did no such thing. They did not make claims about fraudulent ballots, and did not ask the court to invalidate any votes.
Many of the affidavits, from Republican election watchers, were preoccupied with social distancing measures.
They also make irrelevant claims, such as that some workers wore Black Lives Matter apparel, or were physically large, or that more military ballots than expected were votes for Biden.
The Trump campaign's method of gathering evidence to back up its lawsuits has also gotten it into trouble.
In Arizona, it brought hundreds of declarations from people who filled out a form online claiming to witness irregularities. On Thursday, a judge struck them from the record.
"The fact that you can't disprove what's asserted doesn't mean what's asserted is in fact true," Judge Daniel Kiley said, according to the Wall Street Journal.
Trump also rejected the results of the 2016 presidential election, falsely claiming that millions of people voted illegally. While Trump clinched victory in 2016 by winning the Electoral College, he lost the popular vote to Democratic presidential nominee Hillary Clinton by nearly 3 million votes.
The president hasn't disparaged the results of other races that Republicans won this year, which took place on the same ballots he claims are rife with fraud.
Other Republican officials, many of whom haven't acknowledged Biden's win, like House Minority Leader Kevin McCarthy, have crowed about the Democrats' eroding majority in the House of Representatives. Ronna McDaniel, the head of the Republican National Committee, deleted a tweet that suggested Vice President-elect Kamala Harris would lead the Senate, an apparent acknowledgment of Biden's victory.
In his speech the evening of Election Day, where he falsely declared he was elected to a second term, Trump also said he would be "going to the Supreme Court."
His campaign has filed a motion to intervene in an existing Supreme Court case over voting in Pennsylvania. That case doesn't have anything to do with electoral or voting fraud. It's over whether votes cast by mail by Election Day, but arrived at ballot processing centers afterward, should be allowed to count.
Victory in these lawsuits are unlikely to challenge Biden's electoral win
The Supreme Court doesn't seem eager to intervene in the election, Michael Dorf, a constitutional law professor at Cornell Law School, told Bloomberg News. It hasn't required Democrats to file a brief until November 25, two days after Pennsylvania is due to certify its votes.
"I suspect that Chief Justice Roberts and most of his colleagues are hoping that events in the political realm render the matters moot," Dorf said.
Even if Trump successfully joins the Supreme Court case, and Republicans win it, it wouldn't be enough to stop a Biden presidency.
Pennsylvania's secretary of state estimated that only 10,000 ballots cast by mail arrived after Election Day. Even if every single one of those votes were for Biden, they aren't enough to catch up to his 60,000-vote margin in the commonwealth.
And that's just one state.
While Trump may be within his rights to ask for certification to be slowed, or for some ballots to be re-counted, there's no legal basis to actually throw any votes out, Justin Levitt, a professor at Loyola Law School and a former Justice Department official who oversaw voting-rights cases, told Insider.
"You can't throw out an election because you just guess that there might have been wrongdoing maybe, particularly when there's no other reason to suspect any misconduct," Levitt said, adding: "There are lots of safeguards beyond third-party observers to make sure election officials do their job. It does not follow that every procedural glitch means that you invalidate the election or toss out legitimate ballots."
As the Trump campaign continues its litigation, it is also continuing to raise money — though much of it is going to the Republican National Committee and a new Trump-controlled PAC rather than a legal defense fund.
The Trump campaign sent an email to supporters on Thursday with the subject line "Proof of Election FRAUD."
It did not contain any proof of fraud. It did not even mention fraud. All it included was a request for more money.
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