Legal experts say Trump's legal challenges in Pa. are 'Hail Marys'

Experts say five legal challenges playing out in Pennsylvania likely will have no impact on the outcome of the presidential race.

Instead, they suggested attorneys for President Trump are trying to sow doubt in the public over the integrity of the election against Joe Biden.

“They’re Hail Marys,” said constitutional law scholar Jerry Dickinson of the University of Pittsburgh. “There’s a larger strategy here, and these are small pieces of that puzzle that are not going to make a difference whatsoever.

“It’s attempting to delegitimize the election.”

He said Trump’s lawyers are “throwing spaghetti against the wall to see what sticks.”

But Thomas King III, general counsel for the Pennsylvania Republican Party, disagreed.

“No one knows exactly how many votes will be impacted,” King said.

As of Friday, there were five legal claims being litigated in state and federal courts in Pennsylvania.

They include:

• A claim by U.S. Rep. Mike Kelly, R-Butler, and others that defective mail-in ballots should not be allowed to be “cured” (the term for giving voters the chance to fix errors they made) and those who cast them should not be permitted to cast a provisional ballot. On Friday, the Commonwealth Court issued an order requiring all county election boards to segregate provisional ballots submitted by those who sent in mail-in or absentee ballots to determine whether they are valid and can be counted.

• A claim by a Trump poll watcher in Philadelphia County that he was not given close enough access in the Philadelphia Convention Center to meaningfully see ballots being canvassed on Election Day.

• The Trump campaign challenging the extended time frame provided for absentee or mail-in voters who failed to provide proof of identification to do so. Previously, that time frame was the sixth calendar day from the election — or this coming Monday, Nov. 9. But under the three-day extension previously approved by the state Supreme Court, the secretary of state has set that date at next Thursday, Nov. 12.

• A claim by the Northhampton County Republican Committee challenging guidance by the state secretary of State to allow voters who submitted a defective mail-in ballot an opportunity to cure it.

• The three-day extension allowed by the Pennsylvania Supreme Court for counties to receive mail-in ballots, through 5 p.m. Friday. That issue could be heard by the U.S. Supreme Court.

Earlier Friday, the Republican Party of Pennsylvania filed an emergency application with the court to ensure those ballots received between 8 p.m. Tuesday and 5 p.m. Friday are properly segregated, writing that it was “unclear” if every county’s board of elections was doing so.

Later in the day, Justice Samuel Alito issued an order requiring it. The order reinforces the guidance provided by the secretary of State in late October.

Alito said that none of the parties have been able to verify that the individual counties are complying with the guidance. He asked any response from the parties to be filed by 2 p.m. on Saturday.

Dickinson, who has been following all of the litigation closely, said none of the legal issues pending affect very many votes.

“It is a very small number,” he said. “There has not been one other case, based off my knowledge and experience, where the lawsuit threatens to upend the vote total and change the trajectory of the election.”

Referring to the ruling by Commonwealth Court on Friday to segregate provisional ballots, King said, “There could be tens of thousands of provisional ballots across Pennsylvania.

“I have every reason to believe if these ballots are challenged, they will be thrown out,” he said. “How many that is, I don’t know. But it could have a substantial impact.”

Relative to the lawsuit from the Trump poll watcher asserting he was not able to observe the canvass, Bruce Ledewitz, who teaches constitutional law at Duquesne University, said the remedy being sought was simply to move closer. There was no allegation of fraud, and they aren’t seeking to halt the vote and start over.

Therefore, he said, there’s no impact on the count.

As to the challenges to mail-in ballots being cured, Ledewitz said, the only way there would be a legitimate claim is if the offers to make corrections are going only to Democrats and not Republicans. Again, he said, that’s not being alleged.

“I don’t think that will have any impact whatsoever,” he said. “I think by next week, it will be clear: It wasn’t fraud, and Biden will win.”

Regarding the case of the three-day extension to receive mail-in ballots, Ledewitz believes a challenge would be valid.

But even if the U.S. Supreme Court decides to hear it for a third time, its potential impact is slight. As of Friday in Allegheny County, for example, only a total of 872 ballots have been received since 8 p.m. Tuesday.

“Disallowing those votes wouldn’t make a difference,” he said. “It wouldn’t change the outcome in the state.”

Ledewitz said part of the problem for the Trump campaign is the voting process was run well in Pennsylvania.

“Everybody did a good job,” he said.

As for the large number of mail-in ballots breaking for Biden, Ledewitz said that was of Trump’s own making.

“His own constant emphasis on voting in person and not to trust mail-in ballots had an effect. He created a ‘Red Mirage,’ ” he said. The term “Red Mirage” describes the period before most mail-in ballots were tabulated and Republican candidates were ahead in votes, because a majority of mail-in votes were from Democrats.

Dickinson spent Election Day as an attorney observer. He visited more than two dozen polling places in the city of Pittsburgh and the Mon Valley.

“It was pretty amazing to see the machinery of democracy work so smoothly,” he said. He described what he saw as hard work and organization and employees following the process.

“When Americans were up against the wall, we came together quickly and efficiently.”

Still, Dickinson said it could take weeks, if not months, for all of the litigation to conclude.

That seems to be what the parties are gearing up for. Both presidential candidates have established their own election defense funds, soliciting donations to help in the ongoing court battles.

The Biden Fight Fund tells potential donors that the fight could stretch on for weeks.

“We are standing up the most comprehensive legal effort ever assembled,” he wrote on his website.

Trump’s “Official Election Defense Fund” says that for a short time, all gifts are “1000%-matched” but gives no explanation for who is matching them. “President Trump needs you to step up to make sure we have the resources to protect the integrity of the election.”