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‘Frivolous,’ ‘Insubstantial,’ ‘Bad Faith’: Harvard Law Experts Weigh In On Trump Election Lawsuits

Law faculty criticized President Donald J. Trump's allegations of election fraud.
Law faculty criticized President Donald J. Trump's allegations of election fraud. By Owen A. Berger
By Kelsey J. Griffin, Crimson Staff Writer

President Donald J. Trump’s recent lawsuits alleging election fraud are drawing criticism from members of the Harvard Law School faculty, who say the lawsuits lack evidence and present a danger to democracy.

Since the Nov. 3 election, the Trump campaign and the Republican Party have filed more than 20 lawsuits in Pennsylvania, Georgia, Nevada, Arizona, and Michigan. The lawsuits introduce challenges such as whether mail-in ballots were properly authenticated and whether poll observers were allowed sufficient access to the counting process. Many of the claims have been withdrawn or rejected.

Law School Professor Nicholas O. Stephanopoulos ’01 said Trump’s claims have largely failed to produce proof of widespread or nefarious election fraud.

“There's nothing inherently legitimate about filing these lawsuits,” he said. “There's simply no evidence to support the allegations of fraud, non-compliance with state law, faulty software or glitches, etc.”

Stephanopoulos also said the lawsuits would not alter the results of the presidential election even they all proved successful because they do not challenge a large enough number of ballots. He noted that the 2020 election saw a much wider margin of victory than the 2000 election, where roughly 500 Florida votes stood between the candidates.

“Here the differences in votes are in the tens of thousands or hundreds of thousands, whereas all of Trump’s lawsuits are small-bore, small potatoes claims that don't remove the effect of that many ballots,” Stephanopoulos said.

Professor Emeritus Mark V. Tushnet ’67 said he is similarly concerned about the lack of evidence behind the lawsuits.

“A fair number of lawsuits are frivolous, in the quite technical sense that it would [be] appropriate for a judge to impose sanctions such as fines on the [lawyers] who filed them,” he wrote in an email.

“Essentially all of the remainder are insubstantial, either because the lawyers haven't produced even the barest set of facts to support assertions of fraud or because, no matter what the facts turn out to be, the effect on the vote count is too small to affect the results,” Tushnet added.

Constitutional law Professor Emeritus Laurence H. Tribe ’62 shared criticisms of the president and his lawsuits on Twitter, referring to the lawsuits as “BS dressed up as legalese” Friday. Tribe also claimed the attempts to challenge thousands of ballots could suggest a danger to the smooth transition of power.

“The concerted effort to negate the clear and convincing Biden victory this November 3 is bound to fail on its own terms but is increasingly looking like a Trojan Horse within which something sinister dwells,” he wrote in a Nov. 11 tweet.

Stephanopoulos also said he thinks Trump’s decision to launch litigation without sufficient evidence demonstrates “bad faith” and threatens the democratic principle that each side is willing to concede the election if they lose. He said his concerns surrounding the lawsuits extend beyond simply their legitimacy and evidence.

“It's also the bigger question of does the Trump campaign and do the Republicans who are endorsing the Trump campaign’s tactics really believe in democracy and transition of power when voters have chosen to vote out the guys in power?” he said. “I’m not so sure right now.”

—Staff writer Kelsey J. Griffin can be reached at kelsey.griffin@thecrimson.com. Follow her on Twitter @kelseyjgriffin.

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PoliticsHarvard Law SchoolFacultyFeatured Articles2020 Election

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