November 4: With his political path narrowing, President Trump turned to the courts and procedural manoeuvres on Wednesday in a last-ditch effort to stave off defeat in the handful of states that will decide the outcome of the bitterly fought election.
The president’s campaign intervened at the Supreme Court in a case challenging Pennsylvania’s plan to count ballots received for up to three days after Election Day. The campaign said it would also file suit in Michigan to halt the counting there while it pursues its demands for better access for the observers it sent to monitor elections boards for signs of malfeasance in tallying ballots, modeled on a similar suit it was pursuing in Nevada, The New York Times reported.
On Wednesday evening, Trump’s team added Georgia to its list of legal targets, seeking a court order enforcing strict deadlines in Chatham County in the wake of allegations by a Republican poll observer that a small number of ineligible ballots might be counted in one location.
In Wisconsin, which along with Michigan was called on Wednesday for his Democratic opponent, Joseph R. Biden Jr., the president’s campaign announced it would request a recount.
The moves signalled Trump’s determination to make good on his longstanding threats to carry out an aggressive post-Election Day campaign to upend any result not in his favour and pursue his baseless allegations that the outcome was rigged.
But it was not clear how much effect any of his efforts would have. In Georgia, the suit is about 53 ballots, and another case in Pennsylvania is about fewer than 100.
The suits appeared intended at least in part to give some legal weight to a fight that Trump has largely carried out on Twitter and amplified during an overnight appearance at the White House, where he falsely claimed to have won and asserted with no evidence that his opponents were trying to steal the election.
As the legal team began staking its ground, campaign surrogates, aides and the president himself sought to create a public relations drumbeat to promote that theme. Trump had long indicated he would push that argument in the widely expected event that early leads for him in Election Day counts withered as a record number of mail ballots — used disproportionately by Democrats this year — tipped the balance toward Biden.
With Biden in a strong position and the counting trending in his favour, the chances of the outcome being determined in court ebbed on Wednesday. But the day nonetheless had some echoes of the 2000 recount in Florida in which Al Gore unsuccessfully challenged an outcome that gave George W. Bush the presidency.
In a scene that was reminiscent of the so-called Brooks Brothers Riot protest on behalf of Bush that temporarily halted counting in Miami-Dade that year, a crush of Trump supporters on Wednesday stormed a counting office in Detroit with shouts of “Stop the count.”
But this year’s legal clashes were breaking out across several states, and in most cases, it was the Republicans who appeared to be battling from behind, a disadvantageous opening position, though one that Trump’s aides hoped would shift yet again as the counts continued to evolve.
Throughout the day, Republicans claimed that they sought to ensure only that the recorded tally did not include votes that should not have counted, rather than repeating the president’s claims that all counting should have stopped on Election Day when early and incomplete results showed him ahead.
“If we count all legal ballots, the president wins,” the Trump campaign manager, Bill Stepien, said on a morning conference call with reporters.
Stepien took a more aggressive posture later in the day, attempting with no basis to declare victory for Trump in Pennsylvania even as the vote-counting continued.
The Trump campaign dispatched Rudolph W. Giuliani, the president’s personal lawyer, and Eric Trump, one of his sons, to Philadelphia to ensure, as Stepien sought to portray it without any evidence, that “magical pallets” of mail ballots for Biden did not suddenly appear and that “this margin of victory that we are certain of is not stolen by the Democrats and stolen by Joe Biden.”
Early on Wednesday morning, Trump had appeared before supporters and reporters at the White House to say, “We’ll be going to the U.S. Supreme Court, we want all voting to stop,” a statement that drew bipartisan criticism. His campaign team did go to the Supreme Court on Wednesday to file a motion to take over perhaps the highest-profile of the elections cases. In that dispute, Pennsylvania Republicans had sought to block state officials from moving forward with their plan to count all mail ballots postmarked on or before Nov. 3 for three days after Election Day. The state’s legal deadline for the receipt of ballots is ordinarily 8 p.m. on Election Day.
Republicans unsuccessfully sought to appeal their case against the deadline extension to the Supreme Court twice, but on the second occasion three justices — Samuel A. Alito Jr., Neil M. Gorsuch and Clarence Thomas — indicated they would be open to reconsidering their arguments during the post-Election Day period, when their newest colleague, Justice Amy Coney Barrett, would be settled into her role on the court.
The court could, conceivably, decide to take up the case, though that would be a rare move. And Republicans would need to gather more evidence to show that they were harmed by the deadline extension before filing a new motion to engage the court.
Democrats portrayed the Republican efforts as part of a desperate bid to reverse a trajectory that was threatening their hold on the White House. “We’re winning the election,” Bob Bauer, a senior Biden campaign adviser, said in a call with reporters on Wednesday, “and we’re going to protect the election.”
He said that for the Biden campaign and the Democratic Party, that meant meeting court challenges from Trump and the Republicans wherever they might arise. The national party did so late Wednesday in another case the president’s campaign was bringing in Pennsylvania seeking to reject votes from citizens who were given opportunities to fix problems that had caused their mail-in ballots to be rejected.
A federal judge appeared to meet the Republican claims in a related lawsuit — affecting roughly 93 provisional ballots in Montgomery County outside of Philadelphia — with skepticism.
“Wasn’t the legislative intent of the statute that we’re talking about was to enfranchise, not disenfranchise voters?” Judge Timothy J. Savage, an appointee of former President George W. Bush, asked the Republican counsel, Thomas Breth. The judge later chided Breth for referring to “this disenfranchisement game.”
A state court rejected one lawsuit seeking more access to observe the counting of ballots.
The Trump campaign lawsuits in Pennsylvania drew a stern rebuke from Gov. Tom Wolf, a Democrat, who called the legal machinations “simply wrong.”
“These attempts to subvert the democratic process are simply disgraceful,” Wolf said during a news conference Wednesday evening. “We are going to fight every single attempt to disenfranchise voters.”
In the entire legal effort the Trump campaign appeared at times to be trying to walk up a down escalator.
It found itself in an awkward position of seeking to halt counting in some states — where it wanted to limit Mr. Biden’s ability to build more comfortable margins — even as it sought recounts in others were it hoped to cut into Biden’s margins.
And in many cases, it was unclear its moves would gain enough votes to make up the gaps Biden appeared to be building, which extended into the thousands as opposed to the hundreds that separated Bush and Gore in Florida 20 years ago.
“If the margin is more than 1,000 votes, it’s really uphill,” said Benjamin L. Ginsberg, a longtime Republican election lawyer. “If it’s within 10,000 votes, that’s an almost an unscalable mountain.”
The Trump campaign identified Nevada, where Biden’s margin appeared relatively slim as of late Wednesday, as another vote-counting battleground. The state allows any losing candidate to request a recount.
While there is no automatic trigger in Wisconsin for a recount, any losing candidate can force one if the race stays within one percentage point. With roughly 3.2 million ballots cast in the state, that means any margin within about 32,000 could force a recount. On Wednesday, Biden had been declared the winner in Wisconsin with a roughly 21,000-vote margin.
But one prominent Republican in the state, former Gov. Scott Walker, seemed to be skeptical that the recount would bring about a different outcome for Trump. “After recount in 2011 race for WI Supreme Court, there was a swing of 300 votes,” Walker wrote on Twitter. A 2016 recount triggered by a request from Jill Stein of the Green Party found only 131 votes. “As I said, 20,000 is a high hurdle,” he wrote.