NOVEMBER 13, 2020
President Trump has claimed widespread fraud was at play in the presidential election. Several of his lawyers have told judges in courtrooms across the country that they don’t believe that to be true.
The Trump campaign or Republican allies have brought lawsuits in several battleground states contesting election results that favored President-elect Joe Biden, seeking to stop the certification of results or have ballots thrown out. Under questioning from judges handling the cases, at least two of Mr. Trump’s lawyers have backed away from suggestions that the election was stolen or fraudulent.
In other instances, attorneys representing Mr. Trump or other Republicans have said under oath they have no evidence of fraud. Lawyers also have struggled to get what they say is evidence of fraud admitted into lawsuits, with judges dismissing it as inadmissible or unreliable. A coalition of organizations representing secretaries of state, federal agencies and other top election officials said Thursday there wasn’t evidence that voting systems were compromised during the election.
Election-law experts say many of Mr. Trump’s legal claims amount to citations of common irregularities or unintentional errors by voters or administrators rather than election fraud, or intentional efforts to subvert the election. They say that fraudulent acts do occasionally happen, but they typically affect relatively few ballots.
Disputes over procedures or errors are usually resolved by invalidating disputed ballots—typically a limited number that doesn’t alter the result—or modifying counting procedures. Courts only very occasionally have taken extraordinary steps such as ordering a new election.
In Arizona on Thursday, one of Mr. Trump’s lawyers said during a state court hearing that fraud wasn’t an issue in a case alleging some in-person votes cast in Maricopa County were improperly rejected.
“We are not alleging fraud in this lawsuit. We are not alleging anyone stealing the election,” Kory Langhofer, a Trump campaign attorney, said at the start of the hearing. Instead, he said the case was about good-faith errors made in the tabulation of some ballots that may have unfairly resulted in votes not being counted.
In a Pennsylvania lawsuit over several hundred disputed ballots in Montgomery County, a state judge Tuesday repeatedly asked lawyer Jonathan Goldstein if he was alleging that fraud took place.
Mr. Goldstein at first declined to answer, saying “everybody is coming to this with good faith.”
Judge Richard Haaz pressed: “I understand. I am asking you a specific question, and I am looking for a specific answer. Are you claiming that there is any fraud in connection with these 592 disputed ballots?”
“To my knowledge at present, no,” Mr. Goldstein said.
The exchange illustrated the difference between Mr. Trump’s public-relations strategy around the election and what can be raised in court, where strict rules govern what attorneys can say within the bounds of their professional responsibilities and what evidence is deemed admissible.
“I think that there’s a huge difference between the kind of cheap talk that the president can engage in on Twitter and the way that lawyers need to present evidence in court,” said Rick Hasen, a law professor and election-law specialist at the University of California, Irvine.
“Not only are lawyers subject to sanctions if they file frivolous lawsuits or provide false information to the court, but claims are also subject to the rules of evidence,” Mr. Hasen added.
The Trump campaign said that it didn’t need to argue fraud in every lawsuit. In addition, it pointed to affidavits it had submitted to courts as evidence of fraud.
“When we have eyewitness affidavits alleging that stacks of ballots were counted multiple times, as an example, that’s fraud. When ballots were cast with fatal errors, we don’t have to argue fraud because the ballots are defective on their faces,” Trump campaign spokesman Tim Murtaugh said. “Every action we take is meant to either move the ball forward or gain more information. This is a methodical process and every filing is a step along the path.”
In Nevada, representatives for the Trump campaign have claimed alleged fraud in press conferences and public appearances, including that they found instances of dead people voting. None of the claims, however, has made it into court filings there.
Adam Laxalt, the state’s former attorney general and a co-chairman of the Trump campaign in Nevada, told a crowd last weekend that he had presented “evidence of voter fraud.” But a six-page GOP-backed lawsuit alleged one voter said she was told her ballot had already been cast by mail when she went to vote in person.
Much of the lawsuit alleged that Clark County, the state’s most populous, wasn’t legally allowed to use a machine to match signatures on some mail-in ballots and that observers weren’t given meaningful access to the counting process.
Lawyers for Mr. Trump, in a letter sent Nov. 5 to Attorney General William Barr, said they found instances of “criminal voter fraud” in Nevada. The letter said more than 3,000 people appeared to have moved out of state but still voted. A few hundred of those voters appeared to be military members, who are legally allowed to vote while out of state, as are students and some who are working elsewhere but have plans to return to Nevada. That allegation hasn’t made it into court.
Other claims of fraud have struggled to be admitted into evidence.
The Trump campaign has filed two lawsuits in Michigan since the Nov. 3 election, both alleging failures by state and local officials to enforce laws intended to prevent election fraud. In one of the cases, the campaign produced an affidavit from a Republican poll watcher alleging she heard from another person that Detroit poll workers were changing the dates the ballots were received.
The judge described the affidavit as “obviously hearsay,” and last week denied the campaign’s request to halt the counting of ballots, a ruling now under appeal.
Witnesses can’t offer statements based on information from third parties, with limited exceptions.
In the second Michigan lawsuit, the Trump campaign submitted affidavits from poll watchers who alleged they were excluded from the absentee-ballot counting process or witnessed poll workers mishandle votes. The suit seeks to stop the state from certifying any vote tally that includes “fraudulently or unlawfully cast ballots.”
The poll-watcher affidavits, however, primarily contained anecdotes of people feeling threatened or excluded at the ballot-counting center along with reports that workers were fixing ballots in ways that state officials have explained are standard.
In the lawsuit heard Thursday in Arizona, a judge also expressed concern about the way that the Trump campaign was gathering evidence.
Judge Daniel Kiley struck from the record hundreds of declarations the Trump campaign had gathered from people who filled out an online form soliciting voter irregularities.
Mr. Langhofer, the lawyer representing Mr. Trump, said the campaign had removed any declarations it believed unreliable and had put security measures in place to prevent automated bots from filling out the form—including a measure designed to test whether a computer user is human.
“How is that a reliable process of gathering evidence?” said Judge Kiley, later adding, “The fact that you can’t disprove what’s asserted doesn’t mean what’s asserted is in fact true.”