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Donald Trump says judges have refused to look at the evidence of voter fraud. Is he right? - NEWS.com.au

If you have followed much news coverage of the US election and its aftermath, chances are you’ve read that President Donald Trump and his legal team have failed to prove their claims of widespread voter fraud in court.

Mr Trump has a simple explanation for that failure, and it’s worth considering.

According to the President, the problem is not a lack of evidence supporting his allegations. Rather, it’s that judges across the United States have refused to even look at the evidence, and have instead dismissed case after case based on legal technicalities.

This argument really came into focus last Friday, when the US Supreme Court rejected a lawsuit from Texas Attorney-General Ken Paxton.

Mr Trump had largely pinned his hopes of overturning the election result on that lawsuit, which he labelled “the big one” and “the case everyone has been waiting for”.

Reacting to the Supreme Court’s decision, Mr Trump said it had “zero interest in the merits” of Mr Paxton’s case and had “chickened out” of considering them.

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The President has been making similar complaints about other lawsuits for weeks.

“We’ve not gotten any court to judge this on its merit,” he said on December 12, quoting Texas Lieutenant Governor Dan Patrick.

“We’re not allowed to put in our proof. They say you don’t have standing,” he told Fox Business in an interview on November 29.

Mr Trump’s lawyers have echoed this argument, repeatedly insisting the evidence proving fraud exists and they merely need a chance to present it.

“What we have asked for in court is to not have the certification of false results. And so to say, ‘Hold on a minute, we have evidence that we will present to the court.’ We haven’t had an opportunity yet to present that to the court,” Rudy Giuliani said during his rather famous media conference on November 19.

You get the picture. So, is Mr Trump’s explanation correct? Have judges really refused to hear the evidence?

What I’m going to do here is walk you through the key judgments from the last six weeks, examining whether or not judges at federal and state level considered the merits of the President’s allegations before throwing out each lawsuit.

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THE SUPREME COURT

Let’s start with the Supreme Court’s decision on Friday, for which the answer is an unambiguous no.

“The state of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution,” the court said in a brief order shutting down the case.

“Texas has not demonstrated a judicially cognisable interest in the manner in which another state conducts its elections. All other pending motions are dismissed as moot.”

That order says nothing at all about the merits of Mr Paxton’s voter fraud claims, which were broadly the same as Mr Trump’s.

Some context is required here. When a plaintiff files a lawsuit – and this is not just true of election cases, by the way – they must convince the court that they have a right under the law to do so. The legal term for this is “standing”.

If the plaintiff does not have that right, the case fails at the first hurdle and everything else becomes irrelevant. That is what happened here.

Texas was trying to sue four other states – Pennsylvania, Georgia, Michigan and Wisconsin – over their handling of mail-in ballots for the presidential election.

Under the US Constitution, however, each state gets to decide how it runs its own election. Texas might not like how, say, Pennsylvania chooses to do things, but legally it has no say on the matter. The only way to challenge Pennsylvania’s rules is from within Pennsylvania.

This works both ways. Democrats in California, for example, could not sue Texas for something like voter suppression. It’s none of their business.

So, Mr Paxton’s lawsuit did not get far enough for any of its claims to be considered. The Supreme Court ruled Texas had no standing to bring the case in the first place, and that was that.

This result was not remotely surprising to America’s legal experts, who predicted it pretty much unanimously the moment Mr Paxton launched his lawsuit a few days earlier. It was never going to end any other way.

However, while his rhetoric about the Supreme Court “chickening out” is certainly overblown, the President is correct that it did not consider the evidence of fraud.

RELATED: Star Trump witness’s wild testimony

OK, with that big, controversial case out of the way, I’m going to work through the other major post-election judgments in chronological order.

JUDGE BASS

First up is a brief ruling from Judge James Bass in Chatham County, Georgia on November 5.

The Trump campaign filed a petition citing two Republican observers, who said they suspected a stack of 53 ballots received after the 7pm deadline on election day had been added to a different stack to be counted illegally.

There was no other proof to back up their suspicions, and officials testified that the ballots in question had not, in fact, arrived after the deadline.

“The court finds that there is no evidence that the ballots referenced in the petition were received after 7pm on election day,” Judge Bass said.

Nothing more to say about this one.

JUDGE STEPHENS

Next, we have a decision from Judge Cynthia Stephens in Michigan’s Court of Claims on November 6.

The Trump campaign asked the court to halt the counting of absentee ballots. As proof that misconduct was occurring, it provided an affidavit from one of its election observers, Jessica Connarn.

She said an unnamed poll worker had told her the dates on some mail-in ballots were being changed, leading to invalid votes being counted.

Judge Stephens ruled that Ms Connarn’s testimony, based on third-hand information, was hearsay and therefore inadmissable.

“This evidence is inadmissable as hearsay. The assertion that Connarn was informed by an unknown individual what ‘other hired poll workers at her table’ had been told is inadmissable hearsay within hearsay, and plaintiffs have provided no hearsay exception for either level of hearsay,” she said.

That’s what a judge sounds like when they are being sassy, by the way. Judicial slapdowns tend to be dry and very, very nerdy. You’ll be reading more of them as we continue.

The campaign’s complaint also alleged that Eric Ostegren, another observer, was “excluded” from the ballot review process. Judge Stephens said the claim was too vague.

“The complaint does not specify when, where or by whom plaintiff was excluded. Nor does the complaint provide any details about why the alleged exclusion occurred,” she wrote.

She denied the Trump campaign’s request.

JUDGE KENNY

Next, we have a ruling from Judge Timothy Kenny, also in Michigan on November 6.

The Election Integrity Fund, a pro-Trump group, was seeking to stop election workers from curing mail-in ballots in Wayne County, a heavily Democratic area which encompasses the city of Detroit.

It claimed Democratic Party inspectors were improperly duplicating ballots.

“Plaintiffs do not offer any affidavits or special eyewitness evidence to substantiate their assertions,” Judge Kenny wrote.

“Plaintiffs merely assert in their complaint, ‘Hundreds or thousands of ballots were duplicated solely by Democratic Party inspectors and then counted.’ Plaintiffs’ allegation is mere speculation.

“The motion is based upon speculation and conjecture. Absent any evidence of an improper practice, the court cannot identify if this alleged violation occurred and, if it did, the frequency of such violations.

“Plaintiffs have made only a claim but have offered no evidence to support their assertions.”

That’s all pretty self-explanatory.

JUDGE LEAVITT

Here we have the Trump campaign’s one lonely victory in court since the election. It’s not significant, but I thought I should mention it, if only to confirm that yes, the President did actually win one case.

The campaign challenged Pennsylvania Secretary of State Kathy Boockvar’s decision to give voters until November 12 to provide proof of their identity. In essence, she unilaterally extended the existing deadline by three days.

Judge Mary Hannah Leavitt ruled that Ms Boockvar did not have the authority to make that decision. As a result, ballots verified after November 9 were not counted.

This was a legal argument about the powers of Ms Boockvar’s office, and as such did not involve any fraud allegations.

JUDGE KENNY (AGAIN)

Back to Michigan now, where Judge Timothy Kenny issued another ruling on November 13.

The plaintiffs in this case were independent from the Trump campaign. They sought an injunction on the results from Wayne County and a full audit.

I’m bringing up this lawsuit because, unlike a few others you’ll hear about later, it actually did allege fraud on a massive scale. The plaintiffs filed seven sworn affidavits, most of them from Republican observers, who said they witnessed misconduct at a vote counting centre in Detroit.

A few of the affiants, most notably Jessy Jacob and Melissa Carone, have since featured in public hearings held by Mr Trump’s lawyers, who say their testimony is convincing proof that fraud occurred.

Judge Kenny disagreed. He essentially concluded none of the witnesses knew what they were talking about.

“Plaintiffs rely on numerous affidavits from election challengers who paint a picture of sinister, fraudulent activities occurring both openly in the TCF Centre and under the cloak of darkness,” he said.

“Perhaps if plaintiffs’ election challenger affiants had attended the October 29 walk-through of the TCF Centre ballot counting location, questions and concerns could have been answered in advance of election day.

“Regrettably, they did not, and therefore plaintiff’s affiants did not have a full understanding of the TCF absent ballot tabulation process.

“No formal challenges were filed. However, sinister, fraudulent motives were ascribed to the process and the City of Detroit. Plaintiffs’ interpretation of events is incorrect and not credible.”

Judge Kenny went through the affidavits one-by-one, and explained why he didn’t find them credible. Ms Carone is the highest profile witness here, so I’ll give you the judge’s assessment of her claims.

“Ms Carone, a Republican, indicated that she ‘witnessed nothing but fraudulent actions take place’ during her time at the TCF Centre,” he wrote.

“Offering generalised statements, Ms Carone described illegal activity that included counter tabulating machines that would get jammed four to five times per hour, as well as alleged cover-up of loss of vast amounts of data. Ms Carone indicated she reported her observations to the FBI.

“Ms Carone’s description of the events at the TCF Centre does not square with any of the other affidavits. There are no other reports of lost data, or tabulating machines that jammed repeatedly every hour during the count.

“Neither Republican nor Democratic challengers nor city officials substantiate her version of events. The allegations simply are not credible.”

JUDGE GRIMBERG

On November 19, a federal judge appointed by Mr Trump threw out a lawsuit from celebrity lawyer Lin Wood, who had sued Georgia’s Secretary of State, Brad Raffensperger, over his handling of the state’s election.

Mr Wood alleged election officials had violated the US Constitution. He wanted the court to halt the certification of Georgia’s result.

Judge Steven Grimberg said Mr Wood’s case had “no basis in fact or in law”.

He rejected it for multiple reasons, the first being that Mr Wood lacked standing.

Apart from that, he violated the legal doctrine of “laches”, which guards against lawsuits being filed after an unreasonable delay.

The heart of Mr Wood’s case was his objection to a settlement agreement, signed in March, which changed the way Georgia dealt with mail-in ballots.

“Nearly eight months later – and after over one million voters cast their absentee ballots in the general election – Wood challenges the terms of the agreement as unconstitutional,” Judge Grimberg wrote.

“Wood could have, and should have, filed his constitutional challenge much sooner than he did, and certainly not two weeks after the general election.”

Technically, the judgment could have ended there, but Judge Grimberg did go on to address the merits of Mr Wood’s arguments.

“Even assuming Wood possessed standing, and assuming Counts I and II are not barred by laches, the court nonetheless finds Wood would not be entitled to the relief he seeks,” he said.

He went on to address each element of Mr Wood’s lawsuit one-by-one. Here is the judgment, if you’d like to read it.

Mr Wood appealed the decision. The 11th Circuit Court of Appeals slapped him down again on December 5, lamenting his “basic misunderstanding” of relevant legal principles.

JUDGE BRANN

The next judgment comes from Judge Matthew Brann, in federal District Court in Pennsylvania on November 21.

I’m going to spend a bit more time on this case, as it was the Trump campaign’s highest profile lawsuit. This is the one Mr Giuliani thought important enough to argue in court himself.

The campaign sought to stop Pennsylvania from certifying its results, arguing its voters’ “equal protection” rights under the Constitution had been violated (i.e. that Pennsylvania had treated Trump voters differently to Biden voters).

There were two core allegations. First, that Republican observers had been prevented from properly watching the vote count. Second, that some voters (mostly in Democratic-leaning counties) had been given a chance to cure technical defects with their ballots, while others (mostly in Republican-leaning counties) had not.

Note what I didn’t mention there. The campaign did not make any specific allegations of voter fraud, or offer any proof that fraud had occurred. The closest it came was to argue that fraud may have been allowed to happen, due to the treatment of its observers.

Under questioning from Judge Brann during oral arguments, Mr Giuliani conceded it was “not a fraud case”.

“None of these allegations claim that the Trump campaign’s watchers were treated differently than the Biden campaign’s watchers,” Judge Brann noted in his judgment, addressing the campaign’s first argument.

“Simply alleging that poll watchers did not have access to some areas does not plausibly plead unequal treatment. Without actually alleging that one group was treated differently than another, plaintiffs’ argument falls flat.”

It didn’t help that the Pennsylvania Supreme Court ruled, on the same day as Mr Giuliani’s oral argument, that election workers’ treatment of observers had been perfectly legal.

To back up its second claim, the Trump campaign offered two examples of voters from Republican-leaning counties whose ballots were rejected for technical reasons, and who never got a chance to cure them.

Judge Brann noted that instead of suing their own counties for denying them that opportunity, the voters had chosen to sue other counties for not denying that right to their voters.

“Even assuming that they can establish that their right to vote has been denied, which they cannot, plaintiffs seek to remedy the denial of their votes by invalidating the votes of millions of others,” he said.

“Rather than requesting that their votes be counted, they seek to discredit scores of other votes, but only for one race (the presidential election, not down-ballot races). This is simply not how the Constitution works.”

It’s important to understand what this case was about. Given a platform in court, the Trump campaign did not put forward any of the supposed evidence for fraud that Mr Giuliani and Mr Trump had spoken about repeatedly in public. It didn’t even try to prove fraud had occurred.

Instead, it mounted a couple of arguments based on legal theory. Judge Brann considered the merits of those arguments, and found them wanting.

“Plaintiffs ask this court to disenfranchise almost seven million voters. This court has been unable to find any case in which a plaintiff has sought such a drastic remedy,” he said in his ruling.

“One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this court would have no option but to regrettably grant the proposed injunctive relief.

“That has not happened. Instead, this court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.”

JUDGE BIBAS

The Trump campaign appealed Judge Brann’s decision, albeit on narrow, procedural grounds. The President’s lawyers objected to the fact that Judge Brann had not allowed them to amend their complaint after oral arguments were finished.

They lost again, this time at the hands of a panel of three conservative judges from the Third District Court of Appeals.

Judge Stephanos Bibas, who was appointed by Mr Trump, wrote the ruling, and concluded the President’s claims had “no merit”.

“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so,” Judge Bibas said.

“Charges require specific allegations and then proof. We have neither here.

“The Trump campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the campaign ‘doesn’t plead fraud … this is not a fraud case’.

“Instead, it objects that Pennsylvania’s secretary of state and some counties restricted poll watchers and let voters fix technical defects in their mail-in ballots. It offers nothing more.”

This ruling was particularly striking because Judge Bibas went out of his way to address the merits of Mr Trump’s claims.

“We could stop here,” he noted after finding the appeal was baseless.

“Once we affirm the denial of leave to amend, this case is over. Still, for completeness, we address the campaign’s emergency motion to stay the effect of certification (i.e. to stop the state from certifying its result).

“Even if we could grant relief, we would not.

“The campaign cannot win this lawsuit. It conceded that it is not alleging election fraud. It has already raised and lost most of these state law issues, and it cannot relitigate them here. It cites no federal authority regulating poll watchers or notice and cure. It alleges no specific discrimination. These claims cannot succeed.

“The campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so.”

You can read Judge Bibas’s full ruling here.

JUDGE RUSSELL

In Nevada, the Trump campaign partnered with the state’s Republican Party to make a whole bunch of claims in the District Court.

They alleged that ballots were counted despite bearing mismatched signatures; voters were allowed to cast provisional ballots without ID; voting machines allowed illegal voting; some people voted more than once; nonresidents of Nevada voted; votes were cast using dead people’s names; and more.

The lawsuit asked Judge Todd Russell to either pledge the existing presidential electors to Mr Trump instead of Mr Biden, or just annul Nevada’s result altogether.

He held an evidentiary hearing on December 3, allowing the Trump campaign to make its case. The next day, he issued a scathing ruling.

Judge Russell said he had “reviewed the full evidentiary record” and “considered, without limitation, all evidence submitted to the court”.

Two words there – “without limitation” – captured the tenor of his judgment pretty well. In short, he decided to consider all of the proof submitted by the campaign, even though it technically didn’t reach the bar required to be considered admissible.

First, Judge Russell took issue with the testimony of Mr Trump’s witnesses, which was submitted in the form of affidavits, meaning none of them could be cross-examined while the declarations “also constitute hearsay”.

“Most of these declarations were self-serving statements of little or no evidentiary value,” he said. “The court nonetheless considers the totality of the evidence provided by contestants in reaching and ruling upon the merits of their claims.”

Translated from angry judge-speak, that means: Your witness statements are inadmissable, but I’m going to allow them anyway.

The plaintiffs also offered testimony from three expert witnesses:

The first by Michael Baselice of illegal voting was based on a phone survey of voters, a methodology questioned by Judge Russell who said he was unable to identify the source of his data and conducted no quality control over collecting it.

Similarly with voter fraud allegation made by Jesse Kamzol, the methode of analysis based on commercially available voter databases was deemed unreliable.

Thirdly, Scott Gessler’s methodology backing up claims of mail-in voter fraud were deemed “unsound” as his report lacked “citation to facts” and “did not include a single exhibit to support any of his conclusions”.

Judge Russell went into much more detail about the evidence offered – if you’re interested, you can read his full, rather lengthy judgment here.

“Contestants did not prove under any standard of proof that any illegal votes were cast and counted,” he concluded.

The Trump campaign appealed Judge Russell’s decision to the Nevada Supreme Court, which upheld his ruling and said he had applied the proper “burden of proof”.

It noted that the District Court had “considered the evidence offered by appellants even when that evidence did not meet the requirements under Nevada law”.

JUSTICE BRUTINEL

On December 8, the Arizona Supreme Court rejected an attempt from the state’s Republican Party chairwoman Kelli Ward to invalidate Mr Biden’s victory.

Ms Ward questioned the integrity of Arizona’s signature verification system, along with the process used to duplicate ballots that couldn’t be read by tabulation machines.

Her lawsuit alleged election workers had taken votes cast for Mr Trump and changed them to support Mr Biden instead while duplicating them.

It was rejected first by Superior Court Judge Randall Warner, and then on appeal by the Arizona Supreme Court, in an order from Chief Justice Robert Brutinel.

The two courts agreed that some garden variety errors had occurred during the vote count, but saw no proof of misconduct.

Justice Brutinel said Ms Ward had failed to “present any evidence of misconduct, illegal votes, or that the Biden electors did not in fact receive the highest number of votes for office”.

“Elections will not be held invalid for mere irregularities unless it can be shown that the result has been affected by such irregularity,” he wrote.

“The validity of an election is not voided by honest mistakes or omissions unless they affect the result, or at least render it uncertain.”

JUDGE LUDWIG

On December 12 – just two days before the electoral college voted – Judge Brett Ludwig rejected a Trump campaign lawsuit which sought to invalidate the result in Wisconsin.

Judge Ludwig, a Trump appointee, noted he had given the President an expedited hearing “on the merits of his claims”.

This is an interesting one. The defendants – a bunch of Wisconsin officials – argued the Trump campaign lacked standing to bring its case.

Judge Ludwig rejected that argument. He gave the campaign the hearing it wanted, where it was free to call witnesses and present evidence.

“On the morning of the hearing, the parties reached an agreement on a stipulated set of facts and then presented arguments to the court,” Judge Ludwig continued.

This means essentially, an agreement between both party’s lawyers about what testimony witness would give and what facts would be established at a hearing.

In an article for the National Review, Republican legal expert Andrew McCarthy, a former prosecutor, explained it like this: “The morning of the hearing, it turned out there was no actual disagreement between the Trump team and Wisconsin officials about the pertinent facts of the case.

“The President’s counsel basically said, ‘Never mind, we don’t need to present all our proof. We’ll just stipulate to all the relevant facts and argue legal principles.’”

So, given a chance to put all that juicy evidence Mr Trump and Mr Giuliani had been talking about before the court, the campaign decided … not to. It just argued legal theory instead.

Judge Ludwig concluded that Mr Trump’s claims failed “as a matter of law and fact”.

“This is an extraordinary case,” he said (emphasis his).

“This court has allowed plaintiff the chance to make his case and he has lost on the merits.”

JUSTICE HAGEDORN

Staying in Wisconsin, we end with a last-minute ruling from the state’s Supreme Court. On the day of the electoral college vote, it rejected the Trump campaign’s effort to throw out more than 220,000 votes in heavily Democratic areas.

This particular court is controlled by a conservative majority. One of those conservative Justices, Brian Hagedorn, joined with three progressives to deliver Mr Trump a narrow 4-3 defeat.

The primary reason for the decision was “laches”, a legal principle I mentioned earlier which guards against any unreasonable delay in cases being brought.

In essence, if Mr Trump did not like the rules governing Wisconsin’s election, he could have gone to court long before anyone voted under those rules.

Instead, he waited until it was clear he’d lost to Joe Biden, and until the legal relief he sought would retroactively disenfranchise hundreds of thousands of voters.

“The challenges raised by the campaign in this case come long after the last play or even the last game,” Justice Hagedorn wrote in his majority opinion.

“The campaign is challenging the rule book adopted before the season began. Election claims of this type must be brought expeditiously. The campaign waited until after the election to raise selective challenges that could have been raised long before the election.”

He described the campaign’s delay in launching its case as “unreasonable in the extreme”.

“The campaign is not entitled to the relief it seeks,” Justice Hagedorn wrote.

So, this was a procedural defeat for Mr Trump, rather than one based on the merits.

In a concurring opinion, two of the court’s liberal Justices did directly address the Trump campaign’s claims.

“The President failed to point to even one vote cast in this election by an ineligible voter, yet he asks this court to disenfranchise over 220,000 voters,” they wrote.

This ruling was a little different to most we’ve seen in the post-election period, however, because it included three clear dissents.

“The majority’s failure to act leaves an indelible stain on our most recent election,” one of those conservative dissenters wrote.

“It will also profoundly and perhaps irreparably impact all local, statewide and national elections going forward, with grave consequence to the state of Wisconsin and significant harm to the rule of law.

“Petitioners assert troubling allegations of noncompliance with Wisconsin’s election laws by public officials on whom voters rely to ensure free and fair elections.”

That’s a passionate dissent, with arguments we haven’t really heard from any other judges since the election, at state or federal level.

An interesting judgment all around, then. You can read the whole thing here.

SO, IS DONALD TRUMP RIGHT?

To put it succinctly, no. The President’s explanation for his record in court does not hold up under scrutiny.

There are certainly isolated cases where judges did not consider the merits of the Trump campaign’s arguments. Specifically, he can point to the US Supreme Court, and that last decision I mentioned from the Wisconsin Supreme Court.

Otherwise, even when his campaign’s lawsuits have been rejected for technical reasons – such as a lack of standing, or the laches doctrine – judges have gone out of their way to address the merits of its arguments as well.

On multiple occasions, Mr Trump’s lawyers have been given the opportunity to present their much-hyped evidence in court, and have failed to do so.

When they have offered purported evidence of fraud, such as in Nevada and Michigan, judges have invariably found it unconvincing.

The President is certainly free to disagree with those judgments. But when he says judges refused to even hear the evidence, he is wrong.

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2020-12-19 09:17:35Z
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