Why Trump’s Voter Fraud Claims Are Being Laughed Out of Court
By: Sean Myers
Tags: Politics, Law, Voter Fraud, Trump, Election 2020

Photo by Anna Sullivan on Unsplash

Since losing the 2020 election, Donald Trump has claimed, again and again, that he only lost because of “wide spread [sic] voter fraud.”

There were dozens of reasons to raise an eyebrow at these claims:

Trump is only saying that there was fraud in the states that he lost — in fact, he’s insisting that there should be no recounts in the states he won

He keeps trying to throw out mail-in ballots that were counted after Election Day in states like Pennsylvania and Michigan, where Republican lawmakers prohibited those same ballots from being counted beforehand

He demands that mail-in ballots continue to be counted in states where he’s behind, but demands that they stop being counted in states where he held a lead

Trump has never presented concrete evidence of fraud or impropriety — he just makes a claim and never supports it

Despite these gaping holes, Trump’s empty claims flew in right-wing media outlets, where his words are Truth Incarnate and shall never be challenged. His followers believed that the election had been stolen and were convinced that there actually had been large scale voter fraud.

But then Trump brought his claims to court. It did not go well.

Nevertheless, there are right-wing pundits who claim that this is all a part of the plan.

It isn’t a part of the plan. Trump is losing in court because of Twiqbal, a legal doctrine that requires that a lawsuit present the teensiest little bit of supporting evidence to go any further than the starting line.

And yes, Twiqbal is a product of conservatives on the Supreme Court.

Background: The early stages of filing a lawsuit

A lawsuit is a civil court case, not a criminal one.

Technically, all lawsuits begin with the complaint. This document is written and filed by the plaintiff — the person or party that claims to be the victim — and typically runs a few dozen pages. Those pages include:

A description of the plaintiff and the defendant — the person or parties that the plaintiff is claiming hurt them in some way

An explanation of why the court has power to hear the case

Factual allegations and a summary of what happened

Legal conclusions about which laws were broken by what happened

The plaintiff’s demands

There is a key distinction to be made between factual allegations and legal conclusions. Factual allegations include things like “the defendant signed the contract” and “the defendant gave the plaintiff a check for $50.” Legal conclusions are things like “the defendant defrauded the plaintiff.”

A copy of the complaint is filed in court, and a copy is given, or served, to the defendants.

Anyone can file a lawsuit. Far fewer people can win one.

An important part of this process is the defendant’s role in it, so far: They are not a part of it, at all. Crafting a complaint is something that the plaintiff does entirely on their own. The plaintiff can present the case in the light that is most favorable to them. If they are aware of any evidence that weakens their case, the plaintiff does not have to include it.

The lack of a defendant at this point in the process also means that the plaintiff is entirely reliant on the evidence that they have found, on their own. Only after the complaint has been filed with the court and served on the defendant will there be discovery, or the court-monitored provision of evidence by the defendant.

The procedure here is important: The discovery process only happens after the complaint is filed. This can make it difficult for plaintiffs to bring a complicated court case: Without the evidence that could be found through the discovery process, it can be tricky to write a complaint that is supported with the details necessary to make the case seem legitimate.

It might seem harsh to expect the plaintiff to have evidence to support their claims at this point in the process. However, the legal system requires it for two reasons:

It’s not unreasonable to demand that the plaintiff have at least a bare minimum of a case before bringing it to court Allowing the plaintiff to file a lawsuit with nothing to support it, in the intention of using the discovery process to uncover the evidence necessary to back the claims up, would allow plaintiffs to engage in “fishing expeditions” that were initiated by nothing more than conspiracy theories and baseless claims, inconveniencing defendants for little purpose, whatsoever

The complaint process provides the court system an important opportunity to throw out meritless and outrageous lawsuits before they get very far. This protects the court’s time and resources, which are always strained, and gives defendants an opportunity to end lawsuits before they waste too much of their time, as well. Defendants can get these lawsuits thrown out, or dismissed, by filing a motion to dismiss and persuading the court that the lawsuit is fatally flawed.

One way to win a motion to dismiss is for the defendant to persuade the court that, even if the plaintiff ends up proving every plausible statement and assertion in the complaint, it would still fail to state a claim that would lead to the plaintiff getting what they wanted.

Because of where this form of dismissal is described in the Federal Rules of Civil Procedure, this is known as a 12(b)(6) dismissal.

Courts that consider a 12(b)(6) motion look at the plaintiff’s complaint and treat every factual allegation as true. However, no such assumption of truth is made for legal conclusions — if the plaintiff’s legal conclusions were presumed to be true, no case would ever get dismissed.

Getting 12(b)(6)-ed is embarrassing for the plaintiff. It means that they either have absolutely no case, or they are trying to change the law by filing a lawsuit, losing, appealing it, and winning the appeal by convincing a higher court that its earlier cases on the topic were wrongly decided.

99% of the time, the lawsuit was a disgrace and the 12(b)(6) motion has put it out of its misery.

Twiqbal: How hood does a complaint have to be to survive a 12(b)(6)?

A key component of a motion to dismiss under Rule 12(b)(6) is just how bad the factual support in a plaintiff’s complaint has to be.

Ever since 1957, a complaint could survive a 12(b)(6) motion only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” That standard, which comes from the Supreme Court case Conley v. Gibson, provides an exceptionally low bar.

Under Conley, plaintiffs could move even the most tenuous case forward if there was any chance at all that they could prove it, in the end.

Things were different in the late 2000s. Lawsuits had proliferated. The court system was still nearly the same size. Claims regularly took years to resolve. The Supreme Court took action.

In 2007, the Court ruled on Bell Atlantic Corp. v. Twombly. William Twombly was the lead plaintiff in a class action lawsuit against the telephone company. He claimed that Bell Atlantic and other telephone companies colluded with each other to keep prices high. He proclaimed that an agreement had been struck between these companies. He provided no evidence that such an agreement had been made.

Bell Atlantic filed a 12(b)(6) motion.

Under Conley, the case probably should not have been dismissed. But the Supreme Court in Twombly crumpled up Conley and threw it away. No longer could lawsuits survive 12(b)(6)s if there was a conceivable set of facts that supported their claims. Now, the complaint had to allege “enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.”

Under Conley, the facts in a complaint had to conceivably lead to the plaintiff winning their case. Those days were done. In the Twombly era, the facts in a plaintiff’s complaint have to plausibly lead to victory.

Twombly left open the possibility that this new rule was confined to hyper-complex antitrust and business collusion cases. Two years later, the Supreme Court closed that possibility. In Ashcroft v. Iqbal, a majority of the court applied the rule to a discrimination case and explicitly instructed other federal courts to use the Twombly rule, all the time.

When the issue was confined to antitrust cases in Twombly, the Court ruled 7–2. When it was extended to all cases in Iqbal, all four of the liberal Justices — Souter, Stevens, Ginsburg, and Breyer — dissented.

Because these cases go hand-in-hand, the rule they created is often referred to as the portmanteau Twiqbal. Together, they stand for a heightened standard in a plaintiff’s complaint. It’s not enough for a judge to read the complaint and decide that it was conceivable for the plaintiff to win — it had to be plausible for them to win.

Trump’s claims of election fraud aren’t plausible enough to move forward

Many of the Trump Campaign’s lawsuits alleging widespread voter fraud — including the one recently decided in Pennsylvania — have been dismissed under Rule 12(b)(6), or the state’s equivalent of the rule, because the factual allegations they make, even when accepted as true, do not make a plausible case under Twiqbal.

As Judge Matthew Brann, a conservative judge, said in the Pennsylvania case, Trump’s complaint was filled with “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.” When the defendants filed a 12(b)(6) motion to dismiss it, he agreed, saying, “Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted.”

Don’t buy the claims that evidence is being ignored or that new evidence will come to light

A favorite claim of the right-wing media and the lawyers behind these failed lawsuits by the Trump Campaign is that they have plenty of evidence of voter fraud, but that either courts won’t listen to it, or they haven’t presented it, yet.

This is false.

If there was evidence of voter fraud, it needed to be in the Trump Campaign’s complaint. It wasn’t. That’s why courts across the country have been applying the Twiqbal doctrine and granting 12(b)(6) motions left and right. Claiming that courts are turning a blind eye to evidence of voter fraud is hollow. There was so little of it in the complaint that it failed to create a plausible case. Claiming that the Trump Campaign was waiting for the discovery process to present their evidence merely shows that Rudy Giuliani has been out of the legal practice for so long he’s forgotten everything there is to know about it.

Withholding the evidence is no better. Plaintiffs present the evidence of their case at the earliest possible time. At the latest, it has to happen before they lose their case and have to appeal because, on appeal, the appellate court rules on the record — no new evidence is allowed. In the unlikely event that this is what the Trump Campaign is doing, they’re about to learn the hard way what even mediocre lawyers know: Withholding evidence is losing evidence.