Has former President Donald Trump won "two-thirds of the cases that have been adjudicated by the courts" in his crusade to overturn the election result? That's only true if you leave out certain cases and add in others. The "two-thirds" claim ignores important context: Jonathan L. Entin, professor emeritus of law and an adjunct professor of political science at Case Western Reserve University in Cleveland, told Lead Stories that he questions the way the analysis of Trump election lawsuits, on which the claim is based, was done. For one thing, he questions why lawsuits brought before the November 3, 2020, presidential election are included in the analysis. Entin said pre-election lawsuits, especially about procedural matters, are not that uncommon. Rulings in those pre-election cases would not overturn votes after the election, as the post-vote flurry of Trump lawsuits sought to do. Those post-election cases are the ones in which much has been made of Trump's 1-60 win loss record, which this analysis seeks to rebut.
The claim appeared in an article published by LifeSiteNews.com on February 4, 2021, titled, "Trump is winning election lawsuits, in case you haven't heard," (archived here) which opened:
Trump has won two-thirds of the cases that have been adjudicated by the courts.
Users on social media only saw this title, description and thumbnail:
Trump is winning election lawsuits, in case you haven't heard
Trump has won two-thirds of the cases that have been adjudicated by the courts.
Given the many post-election Trump lawsuits aimed at overturning or discounting votes, the implication of the headline is that "winning election lawsuits" refers to those cases. That's not the full picture.
The analysis that is cited by the LifeSiteNews.com article was posted on wiseenergy.org, which states that "the purpose of this site is to sort through many thousands of articles, studies and reports on energy matters." The document accompanying the analysis is attributed to John Droz, Jr., who identifies himself as a physicist.
Comments accompanying the analysis, as well as online articles and social media posts touting its findings, indirectly suggest that Trump may still have a chance at overturning election results. This isn't legally possible. Joe Biden won the Electoral College vote 306 to 232 on December 14, 2020, and Biden was inaugurated January 20, 2021 after Congress on January 6, 2021 certified the Electoral College vote.
Major news organizations have reported on Trump election lawsuits before and since the election. Reporting by The New York Times and USA Today, show that of the 60 or so lawsuits filed in state and federal courts aimed at overturning the election in favor of Trump, only one was successful. The win was for a procedural matter -- the Trump campaign successfully challenged a state-ordered deadline in Pennsylvania extending the deadline for submitting the personal identification required for mail-in ballots.
Entin, the law and political science professor, questioned why lawsuits brought before the November 3, 2020, presidential election are included in the analysis cited by the LifeSiteNews article. Some of the lawsuits on the list were filed months before the election with at least one going as far back as March.
Entin said the analysis "cherry-picked" which lawsuits were used. This included excluding suits brought by, or on behalf of Trump, that the court dismissed because the plaintiffs couldn't prove that they had cause to sue. Entin said the analysis sometimes made inaccurate conclusions, such as making it appear as if the votes in Wayne County, Michigan, were never certified:
That case [in the analysis] is listed as voluntarily withdrawn. Then in the description they say this is a win for Trump and the GOP because the Wayne County votes were not certified. Well, the case was withdrawn, but it is just not true about the Wayne County votes. The Wayne County votes were, indeed, certified. All of the votes in Michigan were certified. All of the votes in every state were certified.
Entin said the analysis arbitrarily choses which cases are included, which undermines its results.
They are excluding a large number of cases by essentially ignoring the cases that were not ultimately decided on the merits. So, the count of successful cases puts aside cases where the court dismissed the case because of lack of standing or lack of jurisdiction. It puts aside cases that were voluntarily dismissed or withdrawn by the plaintiffs. That is essentially cherry-picking. When a case is voluntarily dismissed, that means the plaintiffs decided not to pursue it. It means they dropped it.
If you don't have standing to sue, you don't have a right to be in court. If you waited too long, you don't have a right to be in court. You can't make the leap that Steven Mosher [,author of the LifeSiteNews article,] makes to say that, 'Well, because the court didn't issue a final ruling on the merits of the claim; therefore that is evidence that there was fraud or irregularity.' There is just no logical basis for that conclusion.
The LifeSiteNews article states:
First, of the 80 total lawsuits, 34 have either been withdrawn, consolidated with other suits, or dismissed due to legal technicalities such as lack of standing, timing, or jurisdiction. Those judges who dismissed suits never heard the actual evidence of election irregularities and/or fraud, since they did not allow it to be presented in their courtrooms. Such cases cannot be counted as a loss for Trump. If anything, they are evidence of a failure of our judicial system to -- at a moment of national crisis -- actually address election fraud.
NewsGuard, a company that uses trained journalist to rank the reliability of websites, describes LifeSiteNews.com as:
A website that publishes news and opinion on anti-abortion activism and legislation, which has repeatedly promoted false claims about abortion and the COVID-19 pandemic.
According to NewsGuard the site does not maintain basic standards of accuracy and accountability. Read their full assessment here.
