“The prevailing view today is that courts should not invalidate election results because of problems unless it is shown that the problems were of such magnitude to negate the validity of which candidate prevailed,” said Edward B. Foley, director of election law at Ohio State University’s Moritz College of Law. This is inherently difficult to do, he added, given how hard it is to provide evidence that disputed ballots were cast in favor of a particular candidate.
Professor Foley, whose book “Ballot Battles” provides a history of disputed elections in the United States, described one example that illustrates how difficult it will be for the president to succeed with his claims. In an election with a margin of victory of 10,000, it would not be enough to show that there were 11,000 invalid votes, he said, “because those invalid votes might have split 50-50, not making a difference to the outcome.” (In Arizona, the closest of the major swing states, Mr. Trump trails Mr. Biden by roughly 10,000 votes.)
Mr. Trump has cited cases where irregularities and fraud have led to new elections. But his most recent examples take isolated incidents of small-scale error or fraud and misleadingly apply them to a national election in which more than 150 million ballots were cast. There was the case in Paterson, N.J., earlier this year, for instance, in which a judge recommended a do-over election for a seat on the City Council after evidence surfaced that mail-in ballots had been tampered with. (Just 240 votes separated the first- and second-place candidates.)
And this week in Clark County, Nev., local officials voted to rerun one race for a county commission seat that had a margin of just 10 votes, which Mr. Trump falsely claimed as a “big victory” even though he lost the county by more than 90,000 votes.
Professor Foley traces the nation’s first major ballot-counting dispute back to Philadelphia, the site of some of the legal wrangling today. In 1781, the results of the election for Pennsylvania’s Supreme Executive Council, the state’s executive branch at the time, were contested after allegations that soldiers had been marched to the polls by their commanders and forced to vote for a particular candidate.