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Voting is over, but court cases may just be getting started

Updated November 7, 2020 - 8:01 pm

Although news outlets have declared former Vice President Joe Biden the victor in the 2020 president election, courts in Nevada and beyond may yet play a role in deciding the country’s next president.

President Donald Trump’s campaign and Nevada Republicans have sued state or county elections officials, or both, three times in the past two weeks. Their only clear success has been in securing an order to keep about 30 polls open later on Election Day after a technology issue delayed their openings.

A fourth lawsuit, technically filed by two local Republican campaigns but teased by Trump campaign officials, was filed Thursday night and alleges without cited evidence that thousands of people voted improperly in Nevada.

Judge Andrew Gordon denied the Republicans’ attempts to halt the count in Clark County, saying that it is for the Nevada Legislature to decide election law. The lawsuit remains active.

While Trump himself and Republicans stress they are only working towards a fair, accurate and transparent count of ballots in the final battleground states, Democrats and election law experts say the GOP is making a frivolous attempt to delay or even derail a clear victory for Biden.

Biden takes the lead

The Associated Press, NBC News and others declared Pennsylvania for Biden on Saturday morning, which would give him the electoral votes needed to win the presidency. Election results remain unofficial, however, until all states finish counting votes and certify their elections.

Trump released a statement Saturday refusing to acknowledge the calls, saying “legal votes decide who is president, not the news media.”

“Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated,” Trump said.

Biden also widened his lead over Trump in Nevada to more than 27,000 votes in new updates by the Nevada secretary of state’s office on Saturday. Given that most of the state’s remaining ballots are in Democratic-leaning Clark County, Biden’s lead could grow further as more votes are tabulated over the weekend.

North Carolina has not been called either way, as Biden is within about 80,000 votes of Trump. Biden also leads in Georgia.

Republican legal claims

Trump’s campaign alleged there were issues with observing vote counting in Nevada and Pennsylvania and made a recount pledge in Georgia, general counsel Matt Morgan said in a statement Friday.

“From the beginning we have said that all legal ballots must be counted and all illegal ballots should not be counted, yet we have met resistance to this basic principle by Democrats at every turn,” the president said in a campaign statement Friday morning. “We will pursue this process through every aspect of the law to guarantee that the American people have confidence in our government.”

If Trump’s latest lawsuit proves unsuccessful, could a recount be next?

“No option is off the table,” a Republican National Committee official with knowledge of the Nevada strategy told the Review-Journal on Wednesday.

The official declined to discuss any further legal strategies in detail but added: “I don’t believe there is a person who will read this quote that believes that there’s not a chance some of the mail ballots counted in Clark County are invalid.”

The official also stressed that late-deciding provisional voters have trended more toward the president nationwide. There are some 60,000 provisional ballots being assessed in Clark County.

Trump’s local campaign also sent a letter to the Department of Justice, alleging more than 3,000 people voted in Nevada while living in other states. It provided a list of addresses to both the DOJ and Clark County.

In a news conference Friday, Gloria said he was reviewing the letter. He has said he is not aware of any widespread fraud or issues regarding Clark County ballots.

There are also a few reasons why someone may vote in Clark County despite having another address, Gloria said. Members of the military, college students and federal officials often do that, as do people who live part-time in Nevada who maintain homes elsewhere.

It remains unclear if the Trump campaign intends to fight to void even more ballots. Local courts have typically ruled against the Republican attempts, and even if a judge were to accept the claim of as many as 10,000 improper votes, Biden would still be ahead in the vote count.

Democrats respond

“This is their whole strategy, their whole campaign,” said U.S. Rep. Dina Titus, a Democrat and early Biden endorser. “All three (previous lawsuits) have been turned down. Even our Republican secretary of state called for them to be overturned.”

“Nevada electoral law is put in place by the Legislature,” said Titus, who was a longtime state lawmaker, “and it’s very hard to overturn.”

During an CBS News interview Friday morning, Nevada Attorney General Aaron Ford called the latest Republican lawsuit “garbage.”

Nevada State Democratic Party Chair William McCurdy II said the party has intervened in the Republicans’ latest lawsuit.

“No amount of litigation can change what we already know — Nevadans are ready for new leadership in the White House, and those leaders are Joe Biden and Kamala Harris,” McCurdy said.

No legal path forward

Electoral law experts in Nevada and across the country agreed with Titus on the difficulty associated with overturning election results, and they stressed the current situation is really nothing like the 2000 election, in which the U.S. Supreme Court stopped a recount in Florida and awarded the presidency to George W. Bush.

“So far, I haven’t seen a legal strategy from the Trump campaign in Nevada or elsewhere that could plausibly lead to overturning the results of the presidential election,” said Rick Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine.

“As it should be, it is very hard to get election results changed through litigation unless things are very, very close,” Hasen said. “Florida (in) 2000 came down to 537 votes out of millions cast.”

Rebecca Gill, director of the Women’s Research Institute of Nevada and an associate professor of political science at UNLV, also noted that 2000 also saw a failure of election technology, including punch cards, that clouded how the state would go about a recount. Republicans have alleged a failure in Clark County’s voting machine, but they have yet to prove it, she added.

“It’s relatively close in some of these states, but not as close as it was in Florida,” Gill said. “They could get some ballots thrown out, even flip the state, but it won’t be enough to change the outcome.”

Gill also said the campaign does not have a single, consistent legal strategy.

“These lower-court judges are not deciding these cases in a vacuum,” Gill said. “They are trying to diminish the impact of mail ballots in some states, but the argument is the opposite in Arizona. Judges will ask them why.”

In Arizona, an early Biden lead has been cut by postelection updates favoring the president.

Gill also stressed that the GOP has not shown any evidence of dead people voting in Clark County.

Myrna Perez is the director of the voting rights and elections program at the Brennan Center at New York University, which researches, advocates and litigates voting rights across the country.

“The gamesmanship of it is so obvious,” Perez said. “These lawsuits have very thin facts and circumstances that they’re using to tie up the courts. It’s a big distraction, but the American people are not fooled.”

She said the latest Nevada lawsuit is the only one filed so far in the country that alleges people voted improperly, and even then it was “a breezy sentence with no support.” These distracting lawsuits are also tying up election officials when they are most needed to complete the vote counts, she said.

To succeed, Perez said, Republicans would need a confluence of a strong legal claim, brought by the right people, and with the likelihood of impacting the election. So far, they have not done that.

“This is not about improving or protecting the integrity of the system or the validity of votes,” Perez said. “They’re just trying to slow down the count.”

Contact Rory Appleton at rappleton@reviewjournal.com or 702-383-0276. Follow @RoryDoesPhonics on Twitter.

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