Yesterday Jenna Ellis of the Trump campaign (who had comically attacked me for noting that one of campaign’s proposed orders erred in signing a proposed order as if the judge had signed it) said at a press conference that the press did not understand how the law worked and that there was no need for the campaign to produce evidence in its attempt to overturn the results of the election. (“Your question is fundamentally flawed, when you’re asking, ‘where’s the evidence?’ You clearly don’t understand the legal process.”)
Ellis has a point when it comes to a court considering a motion to dismiss a complaint (where the court does not look at the evidence but instead whether the allegations in the complaint are “plausible” and state a claim that a court can grant relief to), but she’s totally wrong when it comes to the question of the campaign’s Motion for a temporary restraining order/preliminary injunction filed in a federal court in Pennsylvania seeking not just to stop certification but to provide a basis for overturning the election.
At this stage in the process, the campaign must produce evidence to support its claims, because a key question that courts look at in deciding whether to grant a motion for a TRO or preliminary injunction is likelihood of success on the merits: which requires showing the law and facts are on your side, at least at this preliminary stage.
But the campaign did not do that. Not only did it not present evidence of fraud, which Giuliani admitted at Tuesday’s court hearing they were not going to do in this case despite loose talk in the complaint: the motion provides no statistical evidence to support its theory that supposed illegal votes could be deducted from Biden and Trump which would hand Trump the victory. It says it has retained an expert but includes no report whatsoever (and the claim is based upon faulty math). The campaign wants a delay in certification (which can come as early as Monday so that it could try to find evidence). This comes too late.
On top of that, their theory that they can just deduct votes based upon some kind of promised (but not provided) statistical analysis is crazy. As Ned Foley, the country’s leading expert in contested elections through American history, explains: “Trump brief in PA fed court opens with admission that it lacks evidence: see p2 n2. It speculates that IF 10% of mail ballots were unlawful, then statistics MIGHT cast doubt on Biden’s win; even math is wrong because Biden’s margin now is 81K, not 75K. No court, especially not a federal court, should negate an election based on this kind of non-showing. Trump seeks bogging the election down in fed court “discovery” of every mail ballot based on nothing more than conjecture that there might be problems with enough of them. If a state-law judicial contest of an election were filed based on nothing more than this kind of speculation, it would be quickly dismissed for lack of factual predicate for going forward. Fed court should not provide end-run around state-law process.”
I’d add that the complaint points to no authority for this kind of deduction, which is not how election contests are typically proven in state court. You’d have to prove (not just surmise) that there were enough illegal votes accepted for Biden combined with enough legal votes that were not accepted for Trump to make up an 81,000 vote difference; you don’t do this with statistics, you do this with actual evidence. And the actual evidence of such illegal votes counted or legal votes not counted in this litigation is: zero.
This lack of evidence is no surprise and it infects the Trump and Trump-allied lawsuits around the country.
Look, the complaint in Pennsylvania is not likely to survive a motion to dismiss: there are strong arguments that the campaign has no standing to bring this claim under Third Circuit precedent; that the claim is barred by the doctrine of laches because the campaign could have brought these claims before the election and to bring it now would disenfranchise hundreds of thousands of Pennsylvania voters and overturn the will of the people based upon no showing of any illegal ballots; that their Bush v. Gore equal protection theory does not apply to this context; and that the appropriate forum to contest an election is a state court rather than a federal court.
But even if the Trump campaign overcame all of these hurdles and the court would take a look at the evidence, their request for relief fails for a fundamental lack of proof. We are in an emergency election contest. You can’t try to get relief two and a half weeks after a federal election without proof but promising proof to come.
As I told the AP, “It’s kind of a fallacy to say, well, Trump might be doing better if he had better lawyers. Part of the reason he doesn’t have good lawyers is he doesn’t have good claims to bring.”
GOP senators like Senator Hawley who say they are waiting to see what evidence is produced in court don’t have to wait any longer. There’s nothing here.