With the presidency still hanging in the balance, the Trump campaign unleashed a spate of legal challenges Wednesday aimed at disputing electoral gains made by Joe Biden in battleground states, signaling the president’s intentions to contest results.
In Wisconsin, a state narrowly called for Biden on Wednesday, the Trump campaign demanded a recount in what looks to be an unlikely bid to overcome a 20,000 vote margin of victory. Meanwhile, in Michigan, also called narrowly for Biden, and Pennsylvania, where counting dragged into Wednesday night, the Trump campaign called on courts to stop the counting of ballots that remain untallied.
For weeks now, election law experts have argued that a perfect storm of unlikely circumstances would have to occur for the election to be decided by a lawsuit. They were equally skeptical of President Trump’s last-minute petitions to halt voting, maintaining that filing a lawsuit is far easier than winning a lawsuit, particularly one with such drastic ramifications.
“My thinking is pretty much the same as it was two days ago,” said Akil Reed Amar, a professor of constitutional law at Yale University. “The contest would need to be freakishly close in a pivotal state — meaning a state that puts a candidate above 270 — for a lawsuit to make it to the Supreme Court. Even then, Bush v. Gore has not aged well.”
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Even before the results started to trickle in on Election Day, Republicans sought for weeks to nullify ballots in several states. Few early legal challenges were successful, but most rulings left the door open to post-election litigation. And while Trump has threatened to tap the Supreme Court to overturn any close calls against him, the move is likely to be a losing play, even with the bolstered conservative majority, wrote Ned Foley, a leading election law expert at Ohio State, in The Washington Post.
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With final margins still being determined across the nation, including in the decisive, too-close-to-call states of Pennsylvania, Nevada, Georgia, North Carolina, and Arizona, much of the litigation is akin to readying an arsenal to use on an undecided battleground. It’s still unclear which states — if any — will result in a margin of victory slim enough to be reversed by a swath of contested ballots.
Specific paths for litigation and recounts vary by each state’s unique political and judicial landscape:
Wisconsin
Recount: By Wednesday afternoon, the Associated Press had called Wisconsin for Biden. Final margins were still being decided but he appeared to have won by roughly 0.6%, or 20,000 votes. The Trump campaign announced in a statement that “the President is well within the threshold to request a recount and we will immediately do so.”
Indeed, under Wisconsin law, a recount can only be done if a candidate trails by 1 percentage point or less, and believes that an error or fraud has affected the vote count. The candidate has to pay for the recount if the margin is greater than 0.25%, meaning the Trump campaign will likely foot the bill should he go through with the recount. A recount must be requested within three days of the vote count, and the deadline to complete the recount is 13 days after that request.
Michigan
Recount: An automatic recount is triggered if the margin separating the candidates is 2,000 votes or fewer. Otherwise, candidates can request a full or partial recount of the state’s votes if, in the words of Michigan election law, “the candidate is aggrieved on account of fraud or mistake in the canvass of the votes.”
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If evidence of wrongdoing is “not available” to the requesting candidate, then they are “only required to allege fraud or a mistake in the petition without further specification.” The candidate has to specify the precincts to be recounted and what kind of fraud or error is believed to have undermined the vote in those places.
A recount must be requested within 48 hours of the vote count, and the deadline to complete the recount is 30 days after it begins. The requesting candidate pays for the recount and is refunded if the recount turns the election in their favor.
Lawsuit: The Trump campaign on Wednesday announced it had filed a lawsuit in Michigan, asking a judge to halt the counting of ballots because they said the campaign had not been provided with “meaningful access” to observe the counting in multiple locations. Soon after the announcement, networks projected Biden as the winner of the state, which Trump carried in 2016.
Trump campaign statement on #Michigan lawsuit pic.twitter.com/T7FSfp3MVA
— Team Trump (Text VOTE to 88022) (@TeamTrump) November 4, 2020
Pennsylvania
Recount: The secretary of state will order an automatic recount if the race is within a margin of 0.5%. Voters in individual districts can petition for recounts if they sign affidavits alleging errors in the vote totals within five days after an election. The recount must begin by Nov. 18 and be finished by Nov. 24.
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Lawsuits: All eyes were on Pennsylvania — which packs more punch electorally than all but four states — long before Election Day. A mounting sea of lawsuits filed by the Trump campaign and state Republicans looms over the counting in the state, where tens of thousands of mail-in ballots still remain to be tallied. The process is slower than in other states because mail-in ballots couldn’t be counted until Nov. 3.
“Bad things are happening in Pennsylvania,” said Justin Clark, Trump deputy campaign manager, Wednesday afternoon. He alleged that Democrats are “scheming to disenfranchise and dilute Republican votes.”
The campaign said it plans to ask a judge to temporarily halt ballot counting because of concerns that Republican poll monitors had not been able to properly monitor vote counting. It also plans to sue Pennsylvania election officials over concerns that federal voter ID laws were not properly followed.
Last week, the US Supreme Court let stand a decision to count mail-in ballots in Pennsylvania received up to three days after Election Day. The court refused Republicans' second request to hear the case before Nov. 3 but left open the possibility to revisit the case after the election. If the case comes before the court again post-election, opinions from conservative justices suggest they would consider throwing out the ballots received after Election Day.
Another Republican-backed lawsuit filed Tuesday alleged that election officials in a Philadelphia suburb had violated the law by allowing voters whose mail-in ballots were defective to correct them. The case received a chilly reception from a federal judge Wednesday.
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“I don’t understand how the integrity of the election was affected,” said US District Judge Timothy Savage in a hearing. No ruling has yet to be made, but it would only apply to 93 ballots.
North Carolina
Recount: Both the Senate and presidential races were too close to call Wednesday night, though Trump and incumbent Thom Tillis had a slight edge with over 90 percent of the vote counted. Candidates in either race could call for a recount if they lose by a margin of either 0.5% or 10,000 votes. Whichever candidate is behind after an electronic recount can request a manual recount of select precincts. If the manual recount suggests an error in the electronic count that might reverse the outcome of the election, then more precincts will be included.
Lawsuit: For months, Republicans have sought to revoke the extended deadline for mail-in ballots in North Carolina, which will be counted if they arrive through Nov. 12 so long as they are postmarked no later than Nov. 3. But the GOP had little luck overturning the deadline in federal or state court. As in Pennsylvania, the case could get another look from the Supreme Court justices after the election.
Arizona
Recount: Arizona requires an automatic recount for close elections, but the margin has to be very narrow to trigger a recount — just a tenth of a percent of the votes cast. All ballots are recounted electronically, with a sample of precincts hand counted to verify the electronic tally. The secretary of state, Democrat Katie Hobbs, would oversee the recount.
At this point, Biden is narrowly leading Trump in the state.
Nevada
Recount: A candidate can request a full recount for any reason, regardless of the margin. Requests must be made within three business days of vote counting and must be completed within 10 days.
Lawsuit: Late on Tuesday, the state’s Supreme Court granted a request to expedite an appeal of a last-ditch effort by Republicans to temporarily block certain aspects of mail-in ballot processing in Clark County, a bedrock of Democratic voters and home to Las Vegas. That included the use of machines to speed the process of checking voter signatures against state records. A decision on the case is possible as early as next week, but the initial ruling questioned the lack of evidence behind the lawsuit’s claims.
Georgia
Recount: A recount can be requested within two days if the margin is 0.5% or less.
Lawsuit: On Wednesday night the Trump campaign filed its third post-election lawsuit, this time in Georgia, a typically red state that has become an unexpected question mark for Trump as he led by 46,000 votes with 5 percent left to tally. The lawsuit alleges that a Republican observer watched a poll worker mix 53 late absentee ballots into a stack of on-time absentee ballots. State party chair David Shafer said in a statement that they planned to sue in a dozen counties.
Hanna Krueger can be reached at hanna.krueger@globe.com. Follow her @hannaskrueger.