Rich Bernstein: Trump Had 2020 Court Challenges Rejected ‘On the Merits’
Richard Bernstein is a Charter Member of the Society for the Rule of Law Institute. He is a former partner at Willkie Farr & Gallagher and a former partner at Sidley Austin. He clerked for Justice Antonin Scalia from 1987-88 and Judge Amalya Kearse from 1986-87.
At Tuesday’s debate, Donald Trump stated that his side lost the court cases brought to overturn the 2020 election results solely on the technicality of standing: “They said we didn’t have standing. A technicality. Can you imagine a system where a person in an election doesn’t have standing, the President of the United States doesn’t have standing? That’s how we lost.”
Mr. Trump has been repeating this assertion since at least Dec. 12, 2020 when he tweeted, “We’ve not gotten any court to judge this (the vote) on its merit” and “Never even given our day in Court!” He was wrong then and he’s wrong now.
The most definitive account of the more than 60 cases lost by Mr. Trump, his campaign, his electors, and his supporters challenging the 2020 election results was prepared by John Danforth, et al: “Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election” (see pages 3-5, 14-15, 33-35, 44-46, 51-52, 59-63, 68-69). The study goes through every case and shows that many decisions rejected claims as wrong on the merits, and not merely because of standing.
The authors of this study include former Sen. Danforth, former D.C. Circuit Judge and conservative’s conservative Thomas Griffith, former 4th Circuit Judge J. Michael Luttig (now a Board Member of the Society for the Rule of Law), former 10th Circuit Judge Michael McConnell (another conservative’s conservative), and Ted Olson and Ben Ginsberg, former lawyers for George W. Bush in Bush v. Gore.
To cite just a handful of 2020 cases, many decisions rejected merits arguments offered by Mr. Trump, his campaign, his electors, and his supporters. State supreme courts in Arizona, Nevada, Pennsylvania, and Wisconsin rejected such arguments as wrong on the merits. See, e.g., Trump v. Biden, 951 N.W.2d 568, 571-72 (Wis. Dec. 14, 2020); In re Canvassing Observation, 241 A.3d 339, 350 (Pa. Nov. 17, 2020); Ward v. Jackson, 2020 WL 8617817, at *2 (Ariz. Dec. 8, 2020); Law v. Whitmer, No. 82178 (Nev. Dec. 8, 2020) (D.E. 20-44711); In re Canvass of Absentee And Mail-In Ballots Of Nov. 3, 2020 Gen. Election, No. 31 EAP 2020 (Pa. Nov. 18, 2020).
Federal circuit courts covering Pennsylvania and Wisconsin also rejected claims by Mr. Trump and his campaign on the merits. See Trump v. Wisconsin Elec. Comm’n (WEC), 983 F.3d 919, 924-27 (7th Cir. Dec. 24, 2020); Donald J. Trump for President, Inc. v. Secretary Commonwealth of Pennsylvania, 830 F. App’x 377 (3d Cir. Nov. 27, 2020). So did a number of state trial courts and a federal trial court judge in Michigan. See Lost Not Stolen, at 44-46 (citing cases).
Even in Georgia, Mr. Trump cannot blame standing, because he failed to pursue properly his express and undisputed right as a candidate to bring an election contest in the Georgia state courts. See Trump v. Raffensperger, No. S21M0561 (Ga. Dec. 12, 2020); Ga. Code Ann. Section 21-2-521. In addition, in Georgia, one federal trial court rejected the claims of a Trump supporter on independent alternative grounds of standing, laches, and being wrong on the merits, see Wood v. Raffensperger, 501 F. Supp. 1310, 1326 (N.D. Ga. 2020), although the Eleventh Circuit later affirmed on standing without reaching the other grounds, 981 F.3d 1307 (11th Cir. 2020).
Also, a word about Mr. Trump’s court losses that relied on laches as one ground: Laches is not a mere technical ground for rejecting a post-election legal claim. Laches protects voters against post-election “gotcha” claims. Take, for example, the use of drop boxes for absentee ballots. Well before the 2020 election, Wisconsin election officials informed voters and candidates that one way to submit an absentee ballot was through a drop box. No candidate challenged this procedure before the election.
But after the election, Mr. Trump sought to throw out absentee ballots deposited in drop boxes in two counties that Mr. Biden had won by large margins. Courts used laches to protect voters against this belated “gotcha” argument because if the argument had been made successfully before the election, voters could and would have voted by other means, including mailing the ballot or voting in person. See Trump v. WEC, 983 F.3d at 925-26; Trump v. Biden, 951 N.W.2d at 574-77.
Bottom line: just as Mr. Trump lost the election in 2020, he lost many court claims challenging those results based on the merits. To use the vernacular of fact-checking, there are not enough Pinocchios for assertions to the contrary.