“As states press forward with vote counts, Trump advisers privately express pessimism about heading off Biden’s win”, The Washington Post

Published November 11, 2020

By Amy Gardner, Tom Hamburger, Jon Swaine and Josh Dawsey, November 10, 2020

Six states where President Trump has threatened to challenge his defeat continued their march toward declaring certified election results in the coming weeks, as his advisers privately acknowledged that President-elect Joe Biden’s official victory is less a question of “if” than “when.”

Trump began the day tweeting about “BALLOT COUNTING ABUSE” as he and his allies touted unproven claims that fraud had tainted the election in Arizona, Georgia, Nevada, Pennsylvania, Michigan and Wisconsin. Vice President Pence gave a presentation to Republican senators on Capitol Hill about new litigation expected in Pennsylvania, Michigan and Georgia — imploring them to stick with the president, according to several Republicans in the room.

But even some of the president’s most publicly pugilistic aides, including White House Chief of Staff Mark Meadows, Republican National Committee Chairwoman Ronna McDaniel and informal adviser Corey Lewandowski, have said privately that they are concerned about the lawsuits’ chances for success unless more evidence surfaces, according to people familiar with their views.

Trump met with advisers again Tuesday afternoon to discuss whether there is a path forward, said a person with knowledge of the discussions, who, like others interviewed for this report, spoke on the condition of anonymity to describe internal discussions. The person said Trump plans to keep fighting but understands it is going to be difficult. “He is all over the place. It changes from hour to hour,” the person said.

In the states, Democratic and some Republican officials said they have seen no evidence of fraud on a scale sufficient to overturn the results. “There is no evidence of widespread voter fraud,” one GOP official in Georgia said.

Top Republicans back Trump’s efforts to challenge election result

The vote counting, meanwhile, continued apace as the states work toward certifying the vote, a process that should largely be finished by the beginning of December. In Georgia, the deadline for county certification is Nov. 13, but the majority of counties had already completed the task by Tuesday afternoon. Next comes a statewide audit, after which Secretary of State Brad Raffensperger, a Republican, must certify the results no later than Nov. 20.

In Arizona, county canvassing results go to the secretary of state, who must certify on Nov. 30, the fourth Monday after the election, a deadline that can be extended just a few days to accommodate missing county totals. Michigan state law requires certification on Nov. 23. In Nevada, the date is Nov. 24, while in Wisconsin, it is typically Dec. 1. In Pennsylvania, there is no statewide deadline for certification, but counties must certify their results by Nov. 23.

Multiple election officials and legal scholars said there is little Trump can do to stop the process. Even where the opportunity for a challenge exists, it rests on difference-making evidence of wrongdoing — which the Trump campaign has not presented.

“With a 12,000-vote outcome, they’d have to show some irregularity, some fraud, some error in a quantity that exceeded 12,000 votes statewide,” said Cathy Cox, a Democratic former secretary of state in Georgia. “If you come up with 100 voters who were ineligible, it’s going to be a big ‘so what,’ because it’s not going to change the outcome of the election.”

Trump almost certainly cannot delay certification around the country, barring the emergence of major new evidence of fraud, said Derek T. Muller, a professor of law at the University of Iowa.

“I don’t see anything significant at the moment,” Muller said, noting that he could not recall an instance in which a federal court has delayed the certification of a statewide election.

Opportunities to challenge the results remain, however — and if Trump takes them, it could delay the ultimate outcome, several election officials said.

On Tuesday, Trump — who has not appeared in public in five days — continued to question the integrity of the count and refused to allow Biden’s transition officially to begin.

“WE ARE MAKING BIG PROGRESS. RESULTS START TO COME IN NEXT WEEK. MAKE AMERICA GREAT AGAIN!” he tweeted around 8:45 a.m.

“WE WILL WIN!” he tweeted a moment later.

Republican officials in key states echoed his allegations. In Georgia, state GOP Chairman David Shafer and U.S. Rep. Douglas A. Collins, who is leading the recount effort for the Trump campaign in the state, claimed voting discrepancies without evidence and called on the secretary of state to manually recount the ballots.

In Pennsylvania, where Biden leads by just under 50,000 votes, Republican lawmakers launched an investigation of the election by a committee of the state House of Representatives.

[Here are the GOP and Trump campaign’s allegations of election irregularities. So far, none has been proved.]

Perhaps the greatest opportunity for Republicans to try to upend the vote certification process lies in Michigan, where a four-person state canvassing board made up of two Democrats and two Republicans is responsible for certifying the state results. If they deadlock, the decision could fall to the Republican-controlled state legislature, but it is also likely that Democrats would ask a court to intervene.

Of all six states in question, Michigan delivered Biden the largest margin of victory, nearly 150,000 votes, raising questions about what justification Republicans would offer to reverse the popular vote.

Stu Sandler, a former director of external affairs for the Michigan attorney general’s office and now a leading GOP political consultant in the state, said Tuesday that there is growing concern in Michigan about “irregularities and anomalies” in the counting of ballots in the state. He said he is being very cautious in evaluating the claims, but he said that some reports of irregularities seem credible.

Sandler and other Republican officials also expressed concern this week about “the cavalier attitude” of Wayne County elections officials when Republican poll watchers tried to flag concerns.

Such claims have not been substantiated in the courts. Four lawsuits contesting the counting have been filed in Michigan state court by Republican interests. Three have been dismissed by judges in the state, and lawyers for Republican interests have said they will appeal. A fourth lawsuit is expected to be considered during a court hearing Wednesday. A fifth suit, expected to be filed in federal court Tuesday evening by the Trump campaign, was to allege fraud and discrimination against Republican voters.

The two Republicans on Wayne County’s canvassing board said in interviews that they had some concern about the security of the count but stopped short of saying they would object to certifying the vote.

“It’s way too early to say anything about that,” said William Hartmann, one of the GOP board members.

Democrats in the state said they were taking Republican efforts seriously.

“Look, because Donald Trump is capable of anything, we have to be prepared for everything,” said Mark Brewer, a Democratic election lawyer in Michigan.

Michigan House Minority Leader Christine Greig said that party leaders have “strategized about a range of possible antics” but that the GOP efforts appear to be “a pathetic attempt to delay the inevitable.”

Meanwhile, in Pennsylvania, state Rep. Dawn Keefer (R), whose district spans two counties won by Trump, said the inquiry by state GOP lawmakers would seek to determine whether the election “was conducted fairly and lawfully.”

The lawmakers said in a news release that they “demand election results not be certified, nor electors be seated, until the audit is complete.”

But under state law, the power to certify the election and to appoint the state’s presidential electors falls to Secretary of State Kathy Boockvar and Gov. Tom Wolf, both Democrats, who must act according to the popular vote.

Jacklin Rhoads, the communications director for Pennsylvania Attorney General Josh Shapiro, also a Democrat, said the Republican-led legislature is unable to stop that process.

“There is no legal mechanism for the General Assembly to act alone and appoint electors. None,” Shapiro said in a statement.

Boockvar’s office announced late Tuesday that counties had received about 10,000 votes in all after Nov. 3, a batch of votes that the GOP has sued to disqualify. The total revealed Tuesday shows that even if Trump prevails in the suit, it won’t change the outcome.

In Georgia, where Biden leads by less than 0.5 percent, Trump can request a recount within two days of the state’s certification of results. But recounts rarely change the outcome of elections. In addition, Georgia law allows candidates five days to contest certified results in court.

As in other states, the legal bar for successfully challenging election results is high in Georgia. The party contesting the vote has to show not only that misconduct or errors occurred, but also that they were widespread enough to affect the outcome of the election.

Trump’s prospects appeared dimmest in Arizona, Nevada and Wisconsin.

Arizona Secretary of State Katie Hobbs, a Democrat who has said she has full faith in this year’s election process, is alone responsible for certifying the results, although she will do it in the presence of the governor, attorney general and chief justice of the Arizona Supreme Court. Hobbs has every intention to do so, spokeswoman Sophia Solis told The Washington Post, short of “a court order” expressly ordering her to do otherwise.

On Tuesday, Hobbs wrote a fiery letter to Arizona’s Republican Senate president after she requested public records in light of the “current controversy” over election counting.

“To be clear, there is no ‘current controversy’ regarding elections in Arizona, outside of theories floated by those seeking to undermine our democratic process for political gain,” Hobbs wrote.

Biden leads in the state by just under 15,000 votes.

In Nevada, state law calls for counties to canvass their votes on Nov. 16 and to forward their results to Secretary of State Barbara Cegavske, a Republican. Nevada Supreme Court justices then canvass the statewide vote on Nov. 24, and Democratic Gov. Steve Sisolak issues a public proclamation of the winner.

Trump could challenge the results in Nevada by filing a written statement in court within two weeks of Election Day, Nov. 17 — or, if he requests a recount, within five days of a completed recount. A hearing, oral arguments and a decision would follow. However, a reversal of Biden’s roughly 37,000-vote lead would require proof that illegal votes amounted to a number at least equal to that number.

In Wisconsin, where Biden unofficially holds a lead of about 20,500 votes, or 0.6 percent, the Republican-led state legislature plays no role in certifying elections, and Biden’s victory could be finalized by early December. The Trump campaign has said it will request a recount, as allowed under state law, citing “irregularities” in the Wisconsin vote but has provided no evidence or cited any specific examples of potential problems.

Wisconsin’s top election official, Meagan Wolfe, said in a statement Tuesday evening that “no evidence” has been provided to the state that “supports allegations of systematic or widespread election issues” in the state.

One Trump adviser said most of the legal actions did not amount to much, and he expected it to be over by Saturday or Sunday “unless something really changes and we find real evidence.”

But the president is getting reports from “all these people that he has a chance,” including from his personal attorney, Rudolph W. Giuliani, and the Trump children, said one adviser who has spoken directly to the president.

Aides also said Pence is expected to be more vocal. Scheduled to take a short vacation in Florida in the coming days, he canceled the trip to stay in Washington and appeared at a private GOP lunch Tuesday to defend Trump.

The vice president was asked to appear with Trump advisers in Pennsylvania on Saturday, where they claimed without evidence that massive fraud had tainted the Pennsylvania result. Pence’s chief of staff, Marc Short, nixed the appearance, multiple advisers said, believing it would be inappropriate for the vice president and beneath the dignity of his office.

Said one adviser of the president who speaks to him regularly: “He wants to sow discontent in the public that the election was illegitimate, so he can say he didn’t lose.”

Hannah Knowles in Phoenix, Reis Thebault in Atlanta, and Emma Brown, Anna Brugmann, Derek Hawkins, Rosalind S. Helderman, Michelle Ye Hee Lee, Paul Kane, Tobi Raji, Aaron Schaffer and Maya Smith in Washington contributed to this report.

The Washington Post