WASHINGTON – Republican lawmakers from the Northwest have declined to accept President-elect Joe Biden’s victory and are instead backing a barrage of Trump campaign lawsuits without directly endorsing the president’s allegation that the vote was rigged.
But a former top GOP lawyer and Washington’s Republican secretary of state said the legal challenges will not change the outcome of the race and – coupled with Trump’s claims that he lost because of widespread cheating – risk undermining public trust in the nation’s election system.
“I have no problem whatsoever with doing every recount you’re entitled to,” said Mark Braden, who served as chief counsel to the Republican National Committee from 1979 to 1989. “And frankly, it’s not actually bad for the system, if you know of some problems, to bring them forward in the litigation context if need be.
“I have problems with people claiming that the system isn’t fair and doesn’t work.”
Braden, who represented GOP candidate Dino Rossi in Washington’s 2004 gubernatorial race, said recounts and litigation can make a difference in a race like that, in which former Gov. Chris Gregoire edged Rossi by just 129 votes after a recount.
“If this was the Rossi race and the difference was a few hundred votes, then this stuff would be meaningful,” Braden said. “It’s not meaningful when you’re talking about tens of thousands of votes.”
Biden leads Trump by more than 45,000 votes in Pennsylvania and more than 36,000 votes in Nevada, two of the decisive states.
Official results take days or weeks for states to certify, but “decision desks” at media outlets traditionally call races once an outcome is clear. The Associated Press, long the gold standard for calling races, makes clear that it does not predict or project races and only declares a winner when it can eliminate the possibility of a lead change.
“If we cannot definitively say who won, we don’t speculate,” the outlet explained in September. “The AP calls a race when we conclude that the trailing candidate will not catch the leader.”
As of Monday, the AP still had not called the winners of the presidential race in Georgia, North Carolina or Alaska, but Biden has won enough electoral votes to prevail even if Trump wins all three remaining states.
A handful of GOP senators – Mitt Romney of Utah, Susan Collins of Maine, Lisa Murkowski of Alaska and Ben Sasse of Nebraska – have congratulated Biden and called him “president-elect,” but most of their fellow Republicans have sided with Trump, including Senate Majority Leader Mitch McConnell of Kentucky and House Minority Leader Kevin McCarthy of California.
Sen. Lindsey Graham, R-S.C., an erstwhile Trump critic who has become one of the president’s staunchest defenders, said Sunday on Fox News his party’s future depends on challenging the validity of the election results, despite the fact that down-ballot Republicans exceeded expectations in congressional and other races.
“If Republicans don’t challenge and change the U.S. election system,” Graham said, “there will never be another Republican president elected again. President Trump should not concede.”
A spokesman for Rep. Cathy McMorris Rodgers said the Eastern Washington Republican supported the president’s stance.
“Cathy believes that every legal vote should be counted and that President Trump has every right to seek legal recourse in response to allegations of voter fraud and impropriety,” spokesman Jared Powell said in a statement. “She believes integrity and transparency in the election process is foundational to American democracy.”
The Trump campaign and the RNC have filed lawsuits in several key swing states, seeking everything from stopping vote counting to letting election observers stand closer to watch the counting process. Trump has accused election officials around the country of counting “illegal” votes and said on Nov. 7, “If you count the legal votes, I easily win.”
None of the suits has produced evidence of widespread or systemic fraud. Voter fraud does happen and is prosecuted by states, but election officials say it is extremely rare. The Heritage Foundation, a conservative think tank, has catalogued 1,298 proven cases of voter fraud since 1982, or an average of about 34 per year.
GOP Rep. Dan Newhouse, representing Central Washington, said he wants to see the Trump campaign’s lawsuits work their way through the courts to give voters confidence in the outcome, but said, “That doesn’t mean that I believe there was illegal activity in any state.”
“Unless you’ve got hard evidence, accusations like that are not well-founded,” Newhouse said in an interview Saturday. “And that’s why I think a legal challenge is OK and reasonable, but to come to that conclusion before the results of any kind of recount or investigation, I think, probably does diminish the confidence the American people have in our system. And so, if I were president, I would be very, very cautious about making that kind of a statement.”
GOP Rep. Jaime Herrera Beutler of southwest Washington echoed Newhouse’s sentiment.
“We have not seen the evidence that would change the outcome in the several states needed to overturn the results of the election, but like all Americans the president has the right to press his claims in court,” Herrera Beutler said. “There are millions of Americans who support the president, and the public will ultimately have more confidence in our election system if the vote count and legal process is allowed to reach its conclusion.”
Sens. Mike Crapo and Jim Risch, both Idaho Republicans, did not respond to questions about Trump’s cheating claims on Monday.
Braden said isolated mistakes inevitably happen when millions of people vote, but the Trump campaign and GOP have not yet shown evidence of the kind of malfeasance it would take to change tens of thousands of votes.
“The campaign and the Republican Party had a large watcher team in place across the country,” Braden said. “They had lots of lawyers. If there was a disaster somewhere, we’d see some evidence of it.
Judges have already dismissed some of the Trump campaign’s lawsuits on lack of merit. Benji Cover, an associate professor of law at the University of Idaho, said that while the legal challenges themselves are unlikely to change the electoral outcome, the unfounded claims the president and his allies are spreading online could erode trust in voting systems.
“Part of the problem is that there’s a pretty high threshold to win a lawsuit in a court,” Cover said. “You can’t just walk into a court with innuendo and big claims that you can’t back up with any evidence, but there’s a very, very low bar to spreading disinformation and misinformation online.”
Braden said the anecdotal – and frequently debunked – reports of voting irregularities Trump has shared online mislead the public about the election system.
“I don’t know whether what he’s saying is what he genuinely believes and he’s just been deluded by people saying stuff on the internet,” Braden said, “or it’s some type of cynical situation where he’s lying. I don’t know the answer to that. It appears to me to damage the credibility of our system, and our system actually works very, very well.”
Washington Secretary of State Kim Wyman, the state’s top election official, said the election has gone remarkably well – especially in light of the challenges posed by COVID-19 – thanks to the work of election administrators.
“The importance of this election in particular isn’t lost on anyone,” Wyman, a Republican, said of election workers. “These are people who are committed to producing elections that are fair and accurate, and they commit their life’s work to that. The people that I’ve worked with do this work because they know how important it is to uphold our democratic institutions.”
“He’s making an attack not only on the system,” Wyman said. “He’s making a very personal attack on the integrity of the officials that do this work on behalf of their citizens and their states. To make those statements about the ethics and the integrity of the people doing this work because you are losing, potentially, is just incredibly disappointing.”
Lisa Marshall Manheim, an associate professor of law at the University of Washington, said that while Trump has the right to pursue recounts and legal remedies, his refusal to concede could harm the ability of the incoming Biden administration to tackle urgent priorities, including the pandemic. A Trump appointee is currently blocking the Biden transition team from starting its work.
“If the Trump administration drags its heels on the transition, that is likely to make it more difficult for the government to operate in an effective way leading into January. Based on the rhetoric we’re hearing now, it seems likely the Trump administration will delay transition activities for the next few weeks and possibly longer. While I’m not sure that’s good for the country, it will not change what happens on Jan. 20.”
Braden agreed that Trump’s refusal to concede won’t stop the Bidens from occupying the White House after Inauguration Day.
“It is lots of huffing and puffing about nothing, in the end,” he said. “There are going to be new drapes at the White House and Dr. (Jill) Biden is going to get to choose them.”
Even so, Cover said, the Trump campaign’s effort could do damage.
“I’m less concerned about a legal strategy upending this election,” he said. “I’m more concerned about misinformation generating confusion and sowing doubt for millions of Americans. Over 70 million people voted for Donald Trump, and it is a gut punch when the person you voted for loses. … But there’s such a striking difference between how weak the case is in the court of law and how wild the claims are in the court of public opinion. It’s really unprecedented.”
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