The Trump campaign and the Republican National Committee (RNC) sued New Jersey on Tuesday evening over Gov. Phil Murphy's executive order to send mail-in ballots to all voters, continuing a pattern of legal action by the two entities against states that implement such voting systems.
The lawsuit warns that Murphy's move is illegal and will create a "recipe for disaster" for voter fraud.
"In a direct usurpation of the legislature’s authority, Gov. Murphy issued Executive Order 177 ... purporting to rewrite the election code for the November 2020 election. This brazen power grab was not authorized by state law and violates both the Elections Clause and Electors Clause of the U.S. Constitution and" federal law, the lawsuit alleges.
"Moreover, in his haste, the governor created a system that will violate eligible citizens’ right to vote," the suit continues. "By ordering universal vote-by-mail, he has created a recipe for disaster. Fraudulent and invalid votes dilute the votes of honest citizens and deprive them of their right to vote in violation of the Fourteenth Amendment."
The suit recounts instances of voter fraud in New Jersey, including an ill-fated election in Paterson, N.J., this year, and alleges that amid the pandemic Democrats have engaged in a "hurried transition to universal vote-by-mail, eliminate voter-identification requirements, and remove other existing safeguards."
Democrats have pushed back against the Trump campaign's and RNC's claims that mail voting is vulnerable to fraud, citing a litany of studies that show mail-voting fraud is rare in the United States. Some states, indeed, have successfully run elections with universal mail-in voting in the past. And the number of voters electing to vote absentee has increased significantly, largely without incident, in recent elections.
Democrats, emphasizing the danger of the pandemic, have said mail-in voting is a safe and secure alternative to sending millions of voters to the polls on Nov. 3.
"COVID-19 has impacted nearly every aspect of our lives, from our health and safety to how we participate in our democracy," Murphy said in a statement on the executive order. “This virus continues to threaten public health, and with today’s announcement, we are ensuring that New Jersey voters do not have to make a decision between exercising their right to vote and protecting their well-being."
Murphy also responded to the Trump lawsuit in several tweets on Wednesday.
"The President’s campaign is putting itself on-record as wanting to delegitimize our November election, instead of working with us to ensure that voters’ rights are upheld along with public health," Murphy said. "This goes far beyond attempts at weaponizing the @USPS to disenfranchise voters. This is now becoming a full-throated propaganda campaign to undermine the election itself."
He added: "Let me be clear: Vote-by-mail in the November election will keep people safe. Period. The Trump campaign is embarking on a brazen attempt to sow fear and confusion, and to delegitimize our elections and cast doubt on our democratic process."
But Republicans have countered that in the unique circumstances of the pandemic, with states that don't have experience with sending out millions of ballots to voters whose addresses may have changed or may have died, vote-by-mail is especially vulnerable. They've argued that systems in which voters first request an absentee ballot – thus requiring affirmative action on behalf of the voter that they plan to use their mail-in ballot – are more secure.
The Trump campaign suit also says that because any voters who choose to vote in person but don't bring the ballots that were mailed to them will have to vote via provisional ballot, there could be longer lines on Election Day and a backlog as the state tries to count the ballots.
"This massively increased volume of provisional ballots raises grave concerns about increased lines and wait times to vote and the state’s ability to properly process each and every provisional ballot," the suit says. "It will be impossible for county officials to properly inventory, transport and canvass the massively increased volume of provisional ballots by the prescribed statutory process."
In an op-ed for the Wall Street Journal Tuesday, Trump deputy campaign manager Justin Clark also said that in-person votes will be devalued.
"Mr. Murphy’s order relegates in-person voting – the most secure method – to second-class status by deeming every ballot cast at a polling place 'provisional,'" Clark said. "Citizens who want to vote in person face a real threat that their ballots won’t be counted."
Part of Clark's claim is false. Voters may deliver mail-in ballots to their polling places that would not be provisional. Murphy's order says "[a]ny voter who appears at a polling place on the day of the November general election and does not return a voted mail-in ballot ... shall vote via a provisional ballot."
But Clark is correct that those who vote in person without the ballot mailed to them risk not having their votes registered due to the fact their votes would be provisional.
The Trump lawsuit further warns about the risk of ballot harvesting – when politically motivated individuals or groups collect large amounts of mail-in ballots, often from vulnerable individuals like the elderly, and turn them in en masse.
"Because of these widespread inaccuracies in a state’s voter registration records, a state that sends ballots to all registered voters will necessarily send ballots to persons ineligible to vote or others with fake registrations, invalid registrations, outdated registrations, and to the deceased," the Trump suit says. "These risks are compounded by the practice of ballot harvesting – that is, coordinated efforts to have third parties collect absentee ballots from voters and drop them off at polling places or elections centers."
Murphy's order takes some precautions to protect against ballot harvesting, requiring that "[a] voter may return only the mail-in ballot that they personally voted to their designated polling place." But it would also set up drop boxes around the state that would not be monitored like polling places, and ballot harvesters could still mail in the ballots they harvest, as happened in the ill-fated Paterson, N.J., municipal election earlier this year that ended with four people charged with voter fraud and an election do-over.
Earlier this month the Trump campaign also sued Nevada after it passed a law to send ballots to all voters, legislation that Trump in a tweet called "an illegal late night coup." The legal action also comes amid controversy about actions by newly-minted Postmaster General Louis DeJoy to make money-saving changes to the U.S. Postal Service – which he said he would put on hold until after the election – that have led to planned congressional hearings both on Friday and Monday on the matter.
Fox News reached out to Murphy's office for comment but did not immediately receive a response.