How sturdy are the legal arguments propped up by the Trump campaign? Not very, says UM law expert. | Michigan Radio
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How sturdy are the legal arguments propped up by the Trump campaign? Not very, says UM law expert.

Nov 12, 2020

There are now multiple lawsuits originating from Donald Trump’s presidential campaign and his supporters attempting to stop the certification of Michigan’s election results. A flurry of filings in Michigan’s Western District federal court on November 11 were the latest. These cases are based on unsubstantiated claims of fraud or lack of transparency, says University of Michigan law professor Sam Bagenstos.

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He says the filings are an “incredibly weak collection of insinuations and assumptions, not even approaching allegations.” He adds that it just doesn’t make sense that any of these filings could jeopardize President-Elect Joe Biden’s victory in Michigan. Biden won by about 146,000 votes.

Bagenstos, who specializes in constitutional and civil rights litigation, says an allegation needs to specifically allege that something unlawful happened. The Trump campaign’s many filings are based on assumptions, not allegations, he says.

“There’s a lot of stuff in here that’s just been debunked over and over and over again, yet gets recycled in each of these new complaints in these cases,” he said. But by filing many lawsuits, the Trump campaign is still managing to attract attention.

Bagenstos likens it to throwing mud.

“I think what’s basically going on is just an effort to delegitimize the election, and in particular, to delegitimize the value of voters in the places that voted for Joe Biden, particularly in places like Detroit,” he said. “There is clearly a racial overtone here. Some of the allegations are that there were people wearing Black Lives Matter T-shirts in the places where people were counting votes, as if that was in any way indicative of voter fraud.”

President Trump and his campaign have focused special attention on Detroit, a city with a majority-Black population. The recent filings in the state’s Western District federal court include over 200 affidavits from poll challengers who were at the TCF Center, a ballot counting location where, on November 4, a crowd of mostly Republican challengers gathered outside and chanted “stop the vote.”

Despite the location of the TCF Center in Southeastern Michigan, Trump’s team has filed the case in Western Michigan. The Trump campaign argues they are filing in the Western District because that’s where the seat of government—Lansing—is, says Bagenstos.

“I don’t think it’s escaped the eye of any legal observer in this state that the district court bench in the Eastern District of Michigan is reputed to be much more liberal and has many more Democratic appointees than the district court bench in the Western District of Michigan,” he said.

The Trump campaign filings claim there weren’t enough Republican challengers present in the room at the TCF Center and that some election challengers weren’t able to get close enough to see the ballots.

But election workers say there were enough Republican challengers present inside, just as there were enough Democrat and independent challengers. In fact, there were at times too many, based on fire code and COVID-19 guidelines. They also reported that some election challengers physically intimidated poll workers.

Bagenstos says it doesn’t make sense to assume widespread fraud this year in a city that traditionally votes Democratic. In 2016, Democratic candidate Hillary Clinton won Wayne County with 66.8% of the vote. President-Elect Biden won Wayne County with 68% of the vote in 2020, based on unofficial totals.

“It’s a very disproportionate response to what is just the push and pull that happens in almost every election,” he said. “The idea that there was this massive six-figure kind of fraud going on, it just beggars belief. And that you could infer that from the fact that sometimes some people say they were too far away to be able to see the poll book—in no other circumstance would we think that that’s good enough evidence to justify the remedy of taking away the vote that people had cast.”

The Trump campaign has filed a number of similar lawsuits in states outside Michigan. These suits have been filed only in states where ballot counting was completed after November 3 and President-Elect Joe Biden is the projected winner. Meanwhile, counting in North Carolina is still unfinished, but President Trump is projected to win and has not taken legal action in the state since before Election Day.

Michigan county canvassing boards must review and certify their vote totals and send them to Secretary of State Jocelyn Benson by November 17.

This post was written by Stateside production assistant Nell Ovitt.

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