Trump’s Vote-by-Mail Lawsuits Can Succeed Even If They Fail

(Bloomberg) -- Judges are largely rejecting efforts by President Donald Trump's campaign to restrict voting by mail during the pandemic, but fresh lawsuits and appeals by the GOP are dragging out the legal fights, adding uncertainty to the Democrats' final push to get out the vote.

The nationwide effort by Republicans has frequently come up short as courts rebuff arguments that rule changes to accommodate the public health crisis were made improperly or could lead to widespread fraud. But even if the GOP fails to reverse the rulings, the very existence of such suits may convince voters that the outcome is tainted.

The latest blow to the party came in Montana, where a Democratic win could help flip control of the U.S. Senate. A federal judge in Helena on Wednesday rejected an attempt to block the state from automatically mailing ballots to all registered voters. A lawyer for the Trump campaign had conceded that there were no examples of vote-by-mail fraud in the state, even though that was the basis for the lawsuit.

“Central to some of the plaintiffs' claims is the contention that the upcoming election, both nationally and in Montana, will fall prey to widespread voter fraud,” said U.S. District Judge Dana Christensen, a Barack Obama appointee. “The evidence suggests, however, that this allegation, specifically in Montana, is a fiction.”

The Democratic court victories have made it easier to cast and count absentee ballots in key swing states and provided greater access to voters. But the Trump campaign continues to raise doubts about mail-in ballots amid appeals and new challenges.

“The broader point is questioning the legitimacy of the election -- that's the end goal,” said Franita Tolson, an expert in election law and vice dean at the USC Gould School of Law.

Trump made that clear at the end of this week's debate with former Vice President Joe Biden, declaring that balloting already underway was a “fraud” and proof of a “rigged election.”

Trump's campaign has been echoing that sentiment in court. In a filing Thursday in a Pennsylvania lawsuit the campaign said the state will face “a divisive and incoherent administrative nightmare” of an election if it doesn't tighten rules on mail-in ballots to prevent fraud by “spouses, neighbors, acquaintances, strangers, and others.”

“Some of President Trump's statements do overstate the risk of fraud in elections, which may ultimately undermine public confidence in the outcome,” Pepperdine University election law professor Derek Muller said in an interview.

The Democratic National Committee and left-leaning nonprofit groups have been suing for months to ease rules for mail-in ballots given the coronavirus threat, while Republicans have been intervening or suing and raising claims of potential voter fraud. Trump's campaign sued several states over plans to automatically mail absentee ballots or applications to registered voters.

With appeals pending, neither side can claim an outright triumph.

“There are hundreds of cases out there -- it's unprecedented volume,” said Edward Foley, a professor and director of an election law program at Ohio State University. “Both sides are winning and losing. The real question is, are the voters winning or losing.”

Mandi Merritt, press secretary for the Republican National Committee, said in a statement that the GOP has won on key claims, including stopping efforts to lift restrictions on so-called ballot harvesting.

Democrats have sued to allow people to collect absentee ballots from voters and deliver them to election officials. Republicans have successfully blocked those efforts in strategically vital states including North Carolina, Michigan and Pennsylvania.

“The RNC continues to fight back against Democrat efforts to overhaul our elections system -- and we are winning,” Merritt said.

Judges are weighing the GOP's fraud claims against the need to preserve the right to vote during a pandemic that's killed more than 200,000 Americans, Tolson said.

“For this reason, courts are being more aggressive about requiring the Trump campaign and the Republican Party to come forward with actual evidence of fraud in challenging these measures,” she said.

Read More: Election Lawyer's Vote-by-Mail Crusade Meets GOP Resistance

In Nevada, a GOP suit to block the state from automatically mailing ballots to all registered voters was dismissed by a federal judge, appointed by George W. Bush, who called fears about the state's plan “impermissibly speculative.”

In Michigan, a judge who extended the deadline for accepting mail-in ballots said warnings of mischief were outstripped by the “largely unrefuted” testimony of Democratic expert witnesses who said instances of voter fraud were “rare.”

A South Carolina judge who struck down a witness signature requirement for absentee ballots last week said claims that the rule helps in investigations of illegal mail-in voting was contradicted by “an utter dearth of absentee fraud.” Republicans appealed to the Supreme Court.

Republicans in Pennsylvania went to the Supreme Court to block mail-in ballots from counting in the crucial battleground state if they arrive after Election Day without a clear postmark showing that they were submitted by Nov. 3. With the death of Justice Ruth Bader Ginsburg, a potential 4-4 split among the remaining eight justices would leave in force a state court decision that ballots received by Nov. 6 could be counted even if they don't have a legible postmark or were missing a postmark entirely.

In another decision, the Pennsylvania Supreme Court ruled in favor of Republicans when it upheld a ban on ballot harvesting.

North Carolina Republicans advanced claims of fraud to challenge an attempt by the League of Women Voters to require election officials to give voters a chance to “cure” errors in their absentee ballots, such as mismatched signatures. After a judge agreed, the Republican leaders of the state legislature sued to block efforts to implement the order.

The order itself gave the GOP a partial win, denying an effort to scrap a witness-signature rule for absentee ballots. North Carolina, the judge said, had suffered “a serious case of voter fraud involving absentee ballots” in 2016, when a Republican political operative tampered with ballots and the signature requirement proved useful in the investigation.

“The state's interest in preventing, identifying, and investigating voter fraud weighs heavily against the burden on voters,” the judge wrote.

©2020 Bloomberg L.P.