Rudy Giuliani, attorney for President Donald Trump, conducts a news conference at the Republican National Committee on lawsuits regarding the outcome of the 2020 presidential election on November 19, 2020. | Tom Williams/CQ-Roll Call, Inc via Getty Images
He’s had little success so far, and deadlines are looming.
President Donald Trump is still pressing onward with his effort to try to overturn the election results in states Joe Biden clearly won — but he’s had little success so far, deadlines are arriving, and patience among some Republicans is wearing thin.
The most significant development Monday was that the Michigan Board of State Canvassers officially certified Biden as the winner in the state. This shouldn’t have been in question — Biden won there by more than 150,000 votes — but there was some question about whether the two Republican members on the four-member board would indeed certify the outcome.
In the end, one of them voted to do so, while the other abstained. So after Georgia’s certification Friday, Michigan marks the second swing state Biden won where Trump’s efforts to use baseless fraud claims to stop certification ended up failing.
Pennsylvania also has a Monday deadline for counties to certify their vote results — after which the Democratic secretary of the commonwealth, Kathy Boockvar, can certify the state’s overall results. So Republicans have made a flurry of long-shot legal filings, trying to get some judge, any judge, to declare that Pennsylvania can’t certify its results just yet.
And over the weekend, a few more Republican US senators got fed up with Trump’s post-election behavior. Sens. Pat Toomey (R-PA) and Lisa Murkowski (R-AK) joined a handful of their GOP colleagues in condemning Trump’s effort to get state legislatures to overturn the will of their voters, which could be significant in the unlikely event that disputes over this election make it to Congress in January.
So overall it looks quite likely that Biden will indeed take office as scheduled on January 20, but Trump’s effort to obstruct this is very real, he has convinced many of his supporters that the election was fraudulently stolen from him, and it’s far from clear how this would have played out in a truly close race.
Michigan certified its votes for Biden
Though Michigan was the least close of the swing states Biden won — he leads by more than 150,000 votes, a 2.8 percentage point margin — Trump and his allies stoked a great deal of post-election mischief there because of the way the state certifies its votes.
In Michigan, the job of certifying the results is given to a four-member bipartisan board of canvassers. Each county has its own four-person board, and there’s a statewide board as well.
Last week, there were partisan shenanigans at the county level as the two Republican canvassers in Wayne County (Michigan’s largest county, containing Detroit) initially refused to certify the vote totals. Their stated reason for doing so was that too many precincts were “out of balance” (there were more votes cast than voters’ names confirmed as participating).
But the size of these discrepancies was quite small (generally only a few votes in each precinct), suggesting clerical error rather than a massive conspiracy to rig the state for Biden. Plus, similar discrepancies were present in past elections, like this year’s primary. So after a few hours of intense backlash, the Wayne County Republican canvassers backed down and certified the vote — though after President Trump reached out to them, they later claimed they were pressured into certifying.
Then, on Monday, the state-level board met for its own deliberations. One Republican on the state board, Norm Shinkle, stated before the meeting that he doesn’t think the results should be certified, echoing the Trump campaign’s baseless claims of large-scale fraud, so there was some question about the outcome. (Shinkle’s wife was a witness in one of the Trump campaign’s lawsuits alleging improper election practices in Detroit.)
But the other Republican on the board, Aaron Van Langevelde, a lawyer for Michigan state House Republicans, voted to certify the results. He explained at the meeting that he believes that, legally, the board has a “duty” to certify the results as presented to them — that it’s not optional. And he quoted John Adams’s famous line that “we are a government of laws, not men.” (Shinkle ended up abstaining.)
Last week also brought the unusual spectacle of President Trump inviting the Republican leaders of Michigan’s state House and state Senate to meet him at the White House. The obvious implication here is that Trump would like the legislators to make a dubiously legal attempt to give him, rather than Biden, the electoral votes in Michigan.
Under current law, it doesn’t seem that Michigan legislators even can do this — the governor is in charge of certifying the electors, and Whitmer surely wouldn’t certify electors awarded by the state legislature to Trump in defiance of the vote totals. For this to fly, the US Supreme Court would have to decide to throw out vast swaths of federal and state election law to enhance the legislature’s authority, and even then, Congress might have the final say on resolving any disputes.
In any case, the legislators said after the meeting that they “will follow the law and follow the normal process regarding Michigan’s electors.”
Trump and his allies are trying to delay the finalization of results in other states as well
Pennsylvania state law sets this Monday (November 23) as the deadline for counties to certify their election results. After that, the secretary of the commonwealth — Kathy Boockvar, a Democrat — can certify the state results.
The highest-profile lawsuit brought by the Trump campaign so far — an attempt to block Pennsylvania from certifying its results because counties had different policies relating to whether rejected mail ballots could be fixed — went down in flames Saturday. Judge Matthew Brann dismissed the suit in a scathing opinion, as my colleague Ian Millhiser wrote. (This was the suit where Rudy Giuliani personally appeared in court to argue for the campaign.)
Naturally, the Trump campaign is appealing the decision, though they’ve already had to revise their appeal to fix apparent errors, as Brad Heath of Reuters writes. And there is more legal mischief afoot in Pennsylvania. A Republican member of Congress from the state, Mike Kelly, filed a federal lawsuit Saturday that seeks to throw out all mail ballots cast in this election. Kelly argues that Pennsylvania’s new mail-in voting law — passed in 2019 by a Republican-controlled state legislature — was unconstitutional and “illegally implemented.” Experts agree the suit is groundless, as Jeremy Roebuck of the Philadelphia Inquirer writes; it’s most likely a long-shot attempt to get a judge to delay the certification process. (Kelly filed a state lawsuit Monday as well.)
On Friday, Georgia became the first swing state won by Biden to certify its results — but things aren’t totally done there yet either. Though the state already conducted a hand audit of all vote totals, the Trump campaign had the right to suggest a machine recount as well (which would be paid for by the state), and did so this weekend. That recount is expected to be conducted quickly, and it will not change the result; Biden won by more than 12,000 votes, and all those votes have already been double-checked by hand.
In Wisconsin, meanwhile, a partial recount requested by the Trump campaign in two heavily Democratic counties — Milwaukee and Dane — is underway. Trump’s observers are making many objections to the count that have slowed down the process, and it’s fallen a bit behind schedule in Milwaukee, Molly Beck of the Milwaukee Journal Sentinel reports. The state’s certification deadline is December 1.
Trump distanced himself from lawyer Sidney Powell
Meanwhile, there was tumult among Trump’s legal team as the campaign attempted to distance itself from the bizarre claims of one of its allies, lawyer Sidney Powell. “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity,” Giuliani said in a statement Sunday — which came as a surprise, since she stood up at the podium with Giuliani and Trump’s legal team at their press conference just three days earlier.
Even before the election, Powell was frequently in the news this year, as she tried to get the case against Michael Flynn — Trump’s former national security adviser, who pleaded guilty to lying to the FBI as part of the Mueller investigation — thrown out. Though she was not officially part of Trump’s team then, the president clearly approved of what Powell was doing, and Powell admitted under questioning from a judge that she had discussed Flynn’s case with Trump.
Once Giuliani took over Trump’s legal effort to overturn the election results, Powell seemed to have been officially brought into the tent. When Trump’s legal team held a press conference last Thursday, Powell was there at the podium with them. And her claims stood out as particularly bizarre — she asserted that the voting systems company Dominion rigged the vote against Trump, in part because there was “communist money” involved and that the company had ties to the late Venezuelan dictator Hugo Chávez.
Other Trump campaign lawyers, including Giuliani, have also been spreading conspiracy theories and making false claims about voting problems — though even in this genre, Powell’s claims stood out for their outlandishness.
The real problem may have been that Powell began to make baseless claims that could be problematic for Republicans’ efforts to win the two runoff Senate elections in Georgia. Specifically, Powell claimed in an interview with NewsMax on Saturday that Georgia Gov. Brian Kemp (R) made a corrupt deal with Dominion, and that Rep. Doug Collins (R-GA) and not Sen. Kelly Loeffler should have been the rightful winner in one of the Georgia Senate races. Obviously this is a problem for Republicans hoping to turn out their voters to support Loeffler in the January runoff.
So the next day, Giuliani released the statement distancing Trump’s legal team from Powell. (Powell herself released a statement saying “I understand today’s press release” but that she will continue to try to prove fraud in court.)
More Republican senators are getting fed up with Trump
With a handful of exceptions, top Republicans have generally given Trump a lot of leeway to pursue post-election legal challenges and have avoided saying the outcome is settled. But gradually, more are concluding that this has gone on too long, and they’re starting to say so.
After Judge Brann’s decision to throw out the Trump campaign’s Pennsylvania lawsuit, Sen. Toomey issued a statement saying Brann is “a longtime conservative Republican whom I know to be a fair and unbiased jurist,” and that his ruling means Trump has “exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania.” Toomey added some sharp criticism that Trump was trying “to thwart the will of Michigan voters and select an illegitimate slate of electoral college electors,” and he congratulated “President-elect Biden and Vice President-elect Kamala Harris on their victory.”
Then Sen. Murkowski said in a statement Sunday that “President Trump has had the opportunity to litigate his claims, and the courts have thus far found them without merit. A pressure campaign on state legislators to influence the electoral outcome is not only unprecedented but inconsistent with our democratic process.” She added, “It is time to begin the full and formal transition process.”
Trump’s attempt to pressure the Republican leaders of Michigan’s state legislature into trying to overturn the result there seems to have particularly repulsed key Republican senators — Sens. Susan Collins (ME), Mitt Romney (UT), and Ben Sasse (NE) have also criticized this effort.
This is probably only significant as rhetorical pressure. But Congress does have a role in approving the election results: On January 6, 2021, a joint session of Congress will count the electoral votes. This is usually purely ceremonial with the outcome not genuinely up in the air. But in the unlikely event that Trump proves successful at getting several state legislatures to try to overturn the will of their voters, Congress can settle disputes. In that scenario, it could prove important that there’s a faction of Republican senators who are repelled by Trump’s tactics and recognize Biden as the winner.