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Time is running out for President Trump's election challenges

President Donald Trump speaks in the Rose Garden

President Donald Trump speaks in the Rose Garden of the White House Friday in Washington. Credit: AP / Evan Vucci

WASHINGTON — President Donald Trump is running out of time and failing to win many legal challenges in his campaign to upend Democrat Joe Biden’s presidential election victory as ballot counting nears its end and state certifications of vote totals begin.

The Trump team of lawyers and campaign aides have about three weeks to substantially erode Biden’s winning margin in a handful of states enough to shift electoral votes to Trump, a difficult task that most election lawyers consider a long shot at best.

"Right now everything is on track for states to certify their votes over the next few weeks, to appoint electors, for electors to meet and Congress to count the votes," said Richard Hasen, an election law expert at University of California, Irvine, in an email.

"Trump would have to derail some step in that process, which so far he has not provided any credible path to do," said Hasen.

Trump is nowhere near giving up, his campaign spokesman Tim Murtaugh said on a call with reporters Thursday. The campaign is alleging fraud or irregularities in Pennsylvania, Nevada, Michigan, Georgia and Wisconsin, especially with absentee or mail-in votes. But, so far, in almost all cases, judges have rejected what Trump lawyers have presented as evidence.

"There are legal avenues available to the president, as well as recounts, and we are availing ourselves of those," Murtaugh said. He urged everyone to be patient as the Trump campaign lays out "in state after state," adding, "You can’t eat an entire apple in one bite."

Trump’s supporters believe his accusations of Democratic vote stealing. A poll conducted Nov. 8-10 by YouGov and The Economist found 79% of Republican registered voters said they believe fraud affected the outcome of the election.

"Everyone has an interest in verifying the outcome and ensuring the legitimacy of the election," said Robert Romano, vice president of public affairs at the conservative Americans for Limited Government. "And then the country can move forward."

But Biden senior counsel Robert Bauer last week noted that judges had dismissed more than a dozen of the cases filed on behalf of Trump and called them "noise, not really law" and "theatrics, not really lawsuits."

Biden called Trump’s refusal to concede his loss "embarrassing."

Deadlines loom

The states targeted for lawsuits by the Trump campaign must finish canvassing and certifying the vote in next few weeks: Georgia with a Nov. 20 deadline; Pennsylvania, Michigan and Nevada with a Nov. 23 deadline, and Wisconsin with a Dec. 1 deadline.

All states must certify their slate of electors by Dec. 8, and those electors will cast their votes for president on Dec. 14. The U.S. House and Senate will count the votes on Jan. 6, and the next president will be inaugurated on Jan. 20.

Though the outcome of the presidential election is not official until the electors vote, at this point Biden appears to have won 306 electoral votes to Trump’s 232, according to Edison Research.

Trump and his supporters said they aim to derail Biden’s track to the White House. "Our strategy is to proceed to bring resolution to any of our issues prior to final certification," said Matt Morgan, the Trump campaign’s legal counsel, on Thursday’s call with reporters.

"The Trump lawyers have only two avenues. One, asking for a recount, or, two, filing for a contest," said election lawyer John Hardin Young, who worked on the Democratic National Committee’s legal team in the Florida election recount in 2000.

"The rest of these lawsuits about what happened on Election Day are out of time, lack evidence and aren't going anywhere," Young said.

Recounts

The Trump campaign said it hopes that recounts will flip the vote totals, shifting the victory from Biden to Trump, which election experts and even some Trump supporters said appear to be an unlikely outcome.

Still, at the urging of the Trump campaign, Georgia began an audit and an arduous hand count on Friday of the nearly 5 million ballots cast by voters for president because Biden’s lead over Trump is so small — about 14,000 votes, or less than one half of 1%.

Trump’s lawyers also said they will request a recount of Wisconsin’s presidential votes, which they cannot formally do until the state certifies the vote on Dec. 1. The Trump campaign will have to pay the $3 million or so in costs if they follow through.

Trump campaign officials said they aim to cut Biden’s lead in Pennsylvania to below one half of 1% to force a recount in the state with 20 electoral votes that effectively put Biden over the top in the race for 270 in the Electoral College.

Legal challenges

The Trump campaign has filed at least 17 lawsuits in state and federal courts to stop ballot counts, to demand recounts, to gain closer access for its observers of the ballot counting or to toss allegedly fraudulent mail-in ballots, The Associated Press reported.

"The vast majority of the cases that they have filed have been either withdrawn or rejected by the court. So, these cases aren't going anywhere," said Ravi Doschi, senior legal counsel for voting rights at the nonpartisan Campaign Legal Center.

Despite Trump’s continual allegations that Democratic vote-stealing created a fraudulent election, his own Justice Department has not filed a lawsuit, even though Attorney General William Barr authorized legal action for legitimate cases of voter fraud.

On Friday, a Michigan judge tossed a lawsuit by two Trump supporters alleging voter fraud and seeking an audit of votes in Wayne County. And the Trump campaign ended its lawsuit to stop vote counting to review allegedly mishandled ballots in Arizona’s Maricopa County by acknowledging there were too few to overcome Biden’s 11,000-vote lead.

Pennsylvania stands out as the top legal battleground, where at least 15 lawsuits have been filed by the Trump campaign or loyalists.

The Trump team has won some cases in Pennsylvania, including one Thursday to allow Trump observers to be closer to the vote counting. But many of the other cases have failed.

Pending federal cases challenge a preelection state Supreme Court ruling allowing mail-in ballots sent by Nov. 3 and arrived by Nov. 6 to count. But the number of ballots arriving after Election Day is about 10,000, too few to overtake Biden’s roughly 60,000-vote lead.

On Monday, Republicans filed a federal lawsuit alleging that Pennsylvania officials ran a "two-tiered" voting system for in-person and mail-in voters that violates the U.S. Constitution, which some election law experts said they doubt will succeed.

"The differences between mail-in and absentee voting were obvious for months and nothing prevented the Trump campaign from suing earlier over this," Hasen wrote in the Atlantic. "You cannot simply wait until after an election you don’t win to sue over an election problem you could see beforehand."

Lawsuits also have been filed to delay or halt vote counting or to undertake a lengthy recount to push a state past the Dec. 8 "safe harbor" date that protects a state’s slate of electors from being contested, allowing Republican state legislators to pick their own slate of electors.

Electors from Georgia and Pennsylvania also could vote for Trump instead of Biden because neither of those states have laws requiring them to vote for the winner of the majority of votes in the state.

Hasen called those possibilities "Hail Mary passes" that are unlikely to happen.

"In theory, state legislators could try to declare under a part of the Electoral Control Act that voters have ‘failed’ to make a choice for president," Hasen wrote. "For state legislatures to do this, we are out of the realm of legal arguments and into naked power politics."

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