Fiction Writers and Lawyers
First of all, here’s the thing, as our future President likes to say. If you are a fiction writer, it’s fine to make shit up. That is, in fact, the point of the exercise.
If, however, you are a lawyer and if you are crafting a lawsuit. you need two things. First of all, you need a viable legal theory (for example, “my client suffered physical injury due to the defendant’s negligent driving”). Secondly, you need some facts to support your theory. Thus, it’s a fatal flaw if your client did not actually suffer any physical injury, or if the defendant was not in fact the person driving the car.
Trump’s Legal Theory
The legal theory espoused by Trump—who did not attend law school—in his infamous 2 AM speech is that, no matter what state law provides, counting the votes must stop on election night. He failed to cite any legal precedent for this theory.
The Actual Trump Lawsuits: An Overview
The central Trump legal theory is the dog that did not bark in the night.
How many Trump lawsuits are based on the legal theory that Trump has espoused?
The answer is none, zilch, nada, bupkus.
The Actual Trump Lawsuits as of This Morning: A Closer Look
Trump has demanded a recount in Wisconsin. Whoopty-do! He has a legal right to demand a recount. They will do a recount.
In other cases, his ace legal team, led by Rudy Giuliani, who used to be a good lawyer, has picked away—going straight for the capillary, not the jugular. I am in debt to Amelia Thomson-Deveaux for the following summary:
The Trump campaign and other Republicans have filed multiple lawsuits in Pennsylvania, claiming various kinds of election-related irregularities:
- A lawsuit filed in state court by the Trump campaign claimingthat observers were not able to “meaningfully” oversee the count, and asking for the count to be stopped. On Thursday,a state appellate court issued an order guaranteeing that GOP ballot observers can watch the process within six feet. The order did not stop the count in Philadelphia, however.
- Another lawsuit filed in state court by the Trump campaign and the RNCthat tries to move up the deadline for when mail-in voters with missing ID information would need to provide that information. Currently the deadline is Nov. 12, but the Trump campaign wants it to be changed to Nov. 9.
- Another state court lawsuit filed by Pennsylvania Republican candidates and voters, involving ballots that were corrected duringthe initial ballot-processing (“pre-canvassing”) periodon Nov. 3.
- A federal case filed by a Republican candidateobjecting to the process of “curing” or correcting problems with mail-in ballots in Montgomery County, just outside Philadelphia. At a hearing yesterday, the judge in the case seemed skeptical that the Republican claims had affected the integrity of the election, and in any case, a relatively small number of ballots (fewer than 100) appear to have been affected.
- The Trump campaign has asked to intervene as a partyin the Supreme Court litigation over Pennsylvania’s ballot-receipt deadline, which was extended to Friday by the Pennsylvania Supreme Court.The Supreme Court has declined twice to overrule the deadline, but several conservative justices indicated that they might be willing to revisit the case, potentially throwing the validity of any ballots postmarked on Election Day that arrive in that three-day window into question. However, it’s also not clear whether a large number of ballots are actually arriving late — Pennsylvania Secretary of State Kathy Boockvar said on Wednesday that there are only “hundreds” so far.
- The Trump campaign is suing to stop the vote count in Michigan, claiming that it was not given access to observe the counting, and asking to review ballots that it was not able to witness. It’s not clear what the campaign is really trying to accomplish here, sinceBiden is leading in the state. Michigan Secretary of State Jocelyn Benson also said that the claim “doesn’t really line up with the facts.”
- The Trump campaign and the Georgia GOP filed a lawsuitasking a judge in Chatham County to make sure that late-arriving ballots are being properly segregated from on-time ballots. (In Georgia, ballots must be received by 7 p.m. on Election Day to count.) The campaignclaims that the countymight be mishandling ballots, but this appears to be based on a single allegation from a Republican poll observer involving a small number of ballots. In any case, the lawsuit isn’t seeking to stop on-time ballots from being counted.
- The Trump campaign has indicatedthat it will file a formal recount request in Wisconsin — but this can’t happen until the last county has submitted its canvass to the state elections commission, which will happen sometime between Nov. 10 and 17. (And it’s worth mentioning here thatrecounts rarely reverse the outcome of elections —including in 2016, when Trump’s lead over Clinton was basically unchanged after a Wisconsin recount.)