Trump’s fraudulent claims about voter fraud

After Election Day, as mail-in ballots put Joe Biden ahead, President Trump declared that “major fraud in our nation” was taking place and promised to challenge the election in the Supreme Court. The Trump campaign and affiliated parties began filing lawsuits contesting the elections in key swing states where Biden leads in the count. 

Trump roars like a wounded lion, but his legal team has produced only a mouse. Conspicuously missing from the lawsuits filed so far, many of which courts have already dismissed, are credible allegations of any “major fraud.” One example is Trump for President Inc. v. Boockvar, an 85-page lawsuit just filed in federal court by the Trump campaign against Pennsylvania state and county election officials. The lawsuit seeks an emergency order prohibiting Pennsylvania from certifying the results of the state election, in which Biden leads Trump by some 47,000 votes with 99 percent counted.  

Although the lawsuit is one of the most sweeping challenges by the Trump campaign to a Biden swing state victory, it nowhere alleges even one specific instance of deliberate voter fraud. 

Instead of fraud, the lawsuit tries to stitch together what appear to be, at most, administrative errors and disputed judgment calls by election officials. Two key allegations are that Pennsylvania state officials issued flawed pre-election guidances on mail-in ballot voting and counting (previous challenges to the guidances have been rejected) and that Trump poll observers were not allowed to get close enough to the vote counters to effectively monitor the count (Republican and Democratic observers were treated the same). But without evidence of systemic fraud or other misconduct that affected the outcome, experts agree that the allegations will be insufficient to persuade a court to intervene in the election process. 

That point was effectively made by none other than Attorney General William Barr in a recent memo authorizing federal prosecutors to investigate alleged voting misconduct. The Barr memo set off a firestorm within the Department of Justice (DOJ) because it arguably violated the DOJ election Non-Interference Policy, which states that overt election investigations ordinarily should not be undertaken until after the election result is certified. 

But on close inspection, the Barr memo, whether intended or not, may actually undermine the Trump lawsuits. Barr advised federal prosecutors that they could investigate alleged election irregularities but only if there is “clear and apparently credible” allegations of misconduct that “could potentially impact the outcome of a federal election in an individual state.” Barr cautioned prosecutors that “most allegations of purported election misconduct are of such a scale that they would not impact the outcome of an election.”   

Precisely. The last sentence in fact is a fair characterization of the Pennsylvania lawsuit. No election will ever be run perfectly, especially during a pandemic with an overwhelming mail-in ballot vote. Federal judges are extremely reluctant, as one put it in rejecting a different Trump lawsuit in Pennsylvania, to “second guess” the expertise of state election officials. Thus, a federal judge hearing a different Trump challenge to the alleged lack of poll observer access to the vote counters, rather than engage in such second-guessing, recognized that the safety of the counters in the pandemic could be jeopardized if poll observers were peering over their shoulders and ordered the parties to reach an agreement on a suitable distance.  

Without systemic fraud allegations, convincing evidence to back them up and a compelling demonstration that the fraud materially affected the outcome, not even the conservative-majority Supreme Court is going to take the momentous step of overturning a presidential election.  

The Trump campaign and its lawyers surely know that the lawsuits will fail. So this is not about litigation but about delegitimization. Trump positioned himself to successfully run for president on the basis of the birther lie intended to delegitimize his predecessor, President Obama. Now about to leave office, and perhaps to keep his base from being demoralized, Trump is promoting another lie, that fraud cost him the election, to delegitimize his successor, President-elect Joe Biden (and delegitimize democracy in America). But leaving he is, and for that we can be grateful. 

Gregory J. Wallance, a writer in New York City, was a federal prosecutor during the Carter and Reagan administrations. He is the author of “America’s Soul in the Balance: The Holocaust, FDR’s State Department, and The Moral Disgrace of an American Aristocracy.” Follow him on Twitter at @gregorywallance.