President Trump’s approach to challenging the election has been scattershot and contradictory, as his campaign demands that courts stop ballots from being counted in certain places while insisting that a more thorough review is necessary in other places.
Confusing as it may seem, essentially his goal is this: to get judges to invalidate the results in enough counties and states so that President-elect Joseph R. Biden Jr.’s lead disappears.
Would judges ever actually do that?
They have before, though never on the scale that the president and his legal team is attempting. There are numerous examples going back hundreds of years in the United States when courts have been asked to toss out the results of elections on the local, state and federal levels. Losing candidates have prevailed for a variety of reasons: because the court determined that the count was off, or that inconsistent standards were applied in processing ballots, or even that there was voter fraud.
But these cases are the exception. And election law experts said that judges have set the bar extremely high. It’s not enough to claim — or even prove — that irregularities occurred. The irregularities have to be significant enough to change the outcome of the race, which is extraordinarily rare.
“The prevailing view today is that courts should not invalidate election results because of problems unless it is shown that the problems were of such magnitude to negate the validity of which candidate prevailed,” said Edward B. Foley, director of election law at Ohio State University’s Moritz College of Law. This is inherently difficult to do, he added, given how hard it is to provide evidence that disputed ballots were cast in favor of a particular candidate.
Professor Foley, whose book “Ballot Battles” provides a history of disputed elections in the United States, described one example that illustrates how difficult it will be for the president to succeed with his claims. In an election with a margin of victory of 10,000, it would not be enough to show that there were 11,000 invalid votes, he said, “because those invalid votes might have split 50-50, not making a difference to the outcome.” (In Arizona, the closest of the major swing states, Mr. Trump trails Mr. Biden by roughly 10,000 votes.)
Mr. Trump has cited cases where irregularities and fraud have led to new elections. But his most recent examples take isolated incidents of small-scale error or fraud and misleadingly apply them to a national election in which more than 150 million ballots were cast. There was the case in Paterson, N.J., earlier this year, for instance, in which a judge recommended a do-over election for a seat on the City Council after evidence surfaced that mail-in ballots had been tampered with. (Just 240 votes separated the first- and second-place candidates.)
And this week in Clark County, Nev., local officials voted to rerun one race for a county commission seat that had a margin of just 10 votes, which Mr. Trump falsely claimed as a “big victory” even though he lost the county by more than 90,000 votes.
Professor Foley traces the nation’s first major ballot-counting dispute back to Philadelphia, the site of some of the legal wrangling today. In 1781, the results of the election for Pennsylvania’s Supreme Executive Council, the state’s executive branch at the time, were contested after allegations that soldiers had been marched to the polls by their commanders and forced to vote for a particular candidate.
The Pennsylvania Supreme Court issued an opinion that laid out a standard for considering voter fraud as the grounds for overturning an election that still largely applies today: Voters should not suffer for the misdeeds of a few bad actors, the judges said. For fraud or irregularities to render an election invalid, the problems would have to be substantial. The vote was not set aside.
There have been more recent cases in which fraud rendered an election invalid. In one high-profile example, a Florida judge voided Miami’s mayoral election in 1998 and ordered a new vote, citing “a pattern of fraudulent, intentional and criminal conduct” in the casting of absentee ballots.
Mr. Trump has had no such luck in persuading judges or local elections officials. His latest setback came on Tuesday when Republican officials in Michigan’s largest county reversed their earlier votes to delay certification of the election results there. The officials tried to change their stance yet again late Wednesday, but it appeared to be too late: All counties in the state have now certified their results, showing Mr. Biden ahead by nearly 150,000 votes.