The Trump campaign’s disingenuous spin on its watered-down voter fraud claims

The crux of The Post’s report is that the lawsuit removed claims that elections officials violated the Trump campaign’s rights by limiting its ability to witness the ballot-counting process. This is significant because that claim involves more than 600,000 ballots in Philadelphia and Pittsburgh. To the extent that the campaign is backing off that, its path to overturn its deficit in Pennsylvania — which is at nearly 70,000 votes and growing — becomes much more difficult. And without Pennsylvania, President Trump would have virtually no shot at retaining office, given that he would need to overturn the results in three states.

The lawsuit now focuses more on a significantly smaller number of votes that included errors that voters were allowed to fix — also known as “cured” ballots. The Trump campaign alleges that this was facilitated disproportionately in Democratic-leaning areas.

But the Trump campaign assures that this is not all that it seems. Trump attorney Rudolph W. Giuliani claimed that The Post “didn’t read para[graphs] 132-150 which repeat all the allegations of the 680,777 mail in votes which were deliberately concealed from Republican inspectors.” Trump campaign legal adviser Jenna Ellis pointed specifically to Paragraphs 142 and 150. All of these paragraphs, they assured, kept the observers claim — and those more than 600,000 votes — on the table.

The Trump campaign also issued a lengthy statement Monday morning calling The Post’s report “a complete mischaracterization.”

“In fact, because of a Friday ruling by the Third Circuit Court of Appeals in an unrelated case, the campaign strategically decided to restructure its lawsuit to rely on claims of violations of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution,” the campaign said. “The claim that 682,479 ballots were improperly processed and counted is still very much part of the suit.”

But while the campaign — as The Post’s report acknowledges — continues to assert in its lawsuit that its observers were not able to monitor the counting of mail ballots, it is no longer pursuing legal claims based on that allegation. References to the observers remain in the lawsuit, but the Trump campaign is not seeking legal relief based on that allegation anymore. Instead, those assertions are more or less filler at this point.

Ellis mentioned Paragraph 142, which states: “It is estimated that 680,770 ballots were processed by the Allegheny and Philadelphia County Boards of Elections when no observation was allowed.” The other paragraph she cited, No. 150, says, “Plaintiffs incorporate each of the prior allegations in this Complaint.”

But that language is standard. It simply means that everything in the lawsuit should be considered as part of the allegation. But the actual allegations of violations say nothing about election observers.

The newly amended lawsuit eliminates five of the previous seven allegations of violations, in fact, including all that focused on the access of observers. It also eliminates that claim from its request for relief, which is what really matters in such a lawsuit.

The only two counts remaining focus on the smaller issue of “cured” ballots:

• The previous Count 4, alleging a violation of the 14th Amendment’s Equal Protection Clause over claims that some voters were informed that their ballots needed to be fixed while others were not.
• The previous Count 5, alleging violations of the electors and elections clauses of the Constitution, claiming the governor’s Executive Board overstepped on cured ballots when that should have been at the authority of the state legislature.

Pennsylvania Secretary of State Kathy Boockvar (D) noted the observers claim now has “no bearing” on the Trump campaign’s claims anymore and said it “cannot form the basis for any purported relief.”

And, indeed, references to such alleged violations were repeatedly stripped not just from the specific allegations of violations described above but also from earlier portions of the lawsuit. Here’s a sampling of what was taken out:

• “Finally, contrary to the in-person voting that is open and transparent to the parties and the candidates, Defendants permitted the review and counting of mail-in ballots largely in secret with no monitoring.”
• “Defendants have also violated the Equal Protection Clause because as a result of their desire to ensure opacity, watchers in Allegheny and Philadelphia County do not have the same right as watchers in other Pennsylvania Counties to be present as a matter of law when envelopes containing official absentee and mail-in ballots are reviewed and opened and when such ballots are counted and recorded. Also, this means voters are at an unequal risk of having their legal votes diluted by ballots that otherwise should be disqualified. There is no legitimate state interest justifying this disparity.”
• “Through the arbitrary and illegal actions of the Secretary [of State Kathy Boockvar], Pennsylvania created a two-track system of voting resulting in voters being treated differently depending on how they chose to exercise their franchise. … The second, marked by a mass of paper ballots received through the mail, was cloaked in darkness and complied with none of those transparency and verifiability requirements. This two-track election system not only violates Plaintiffs’ rights guaranteed by the United States Constitution, but also violates the structure of the Constitution that elections in the States must be carried out as directed by their respective legislatures.”

As with the last one above, the lawsuit also nixed several references to such alleged violations, along with the idea that they were done willfully (words added to the lawsuit are in bold):

• “The evidence is plain that Defendants have been and are blatantly violating the protections and procedures, including those enacted by the Pennsylvania General Assembly, vitally necessary to ensure that the votes of the citizens of Pennsylvania are not illegally diluted by invalid ballots and that the election is free and fair.”
• “Take Philadelphia County, however, had other plans for example.”
• “Worse, Democratic-heavy counties violated the mandates of the Election Code and the determinations of the Pennsylvania Supreme Court, advantaging illegally advantaged voters in Democratic-heavy counties as compared to those in Republican-heavy counties.”
• “The processes were hidden during the receipt, review, opening, and tabulation of those 682,479 votes in direct contravention of the Election Code.”

That last one is telling. It’s from Paragraph 4, which Trump campaign spokesman Jason Miller cited as proof that the Post report was flawed. But while it still references the election observers, its removal of “in direct contravention of the Election Code” is a direct reflection that this isn’t a focal point of the violations alleged.

So the idea that it would be forced to scale back its claims in Pennsylvania would track with all of that — and reinforce the limits of its legal strategy.

Indeed, the Trump campaign’s statement Monday gave away the game, more or less. It cited Friday’s ruling by the U.S. Court of Appeals for the 3rd Circuit. That ruling found that the campaign didn’t have standing — or the ability to contest the case — to challenge the counting of ballots that arrived in Pennsylvania after Election Day but were postmarked by then.

The campaign admits it “strategically decided to restructure” its lawsuit in light of that. In other words, they lost and had to change their strategy. In this case, that strategy was to scale back this lawsuit. Which is exactly what The Post reported.

And, if you look closely, the Trump campaign essentially acknowledges all of it.

Trump campaign spokesman Tim Murtaugh told The Post for its story Sunday: “We have preserved our rights to make these arguments.” But preserving your right doesn’t mean that’s the argument you’re utilizing to stop the certification of the election. And it’s not — not anymore.

The Trump campaign isn’t disputing the reporting. Instead, it’s taking issue with how it’s being interpreted: as evidence of a faltering legal effort. But that interpretation is also wholly logical, even by the Trump campaign’s own admission.