The news that Joe Biden has already won the election despite some states not officially calling the result, cause angst among Republicans who still hope that the remaining few votes will swing to Trump. Elsewhere in the country, and on Donald Trump’s official twitter, the Republican campaign are threatening to sue the process for fraud and overturn the vote.
Rudy Giuliani, Trump’s personal attorney said “networks don’t get to decide elections” after Associated Press projected that Joe Biden would win enough electoral college votes to defeat the incumbent president, later saying that “courts do”. Obviously, he is incorrect – voters decide, with the notable exception of the 2000 presidential race which hung on the balance of 537 votes Florida. The dispute in Bush v Gore 2000 arose when the number of contested ballots exceeded the margin of victory. Yet, Biden has won too many votes for the Trump campaign to mount any legal challenge that would actually change the outcome. Even for recounts, the margins appear too large for the states to automatically issue one.
The campaign has other legal options beyond recounts, but experts claim that their success rate is low. The Trump team can contest the validity of the remaining ballots that have yet to be counted, or they can sue to get some ballots thrown out on the basis that they were filled out unlawfully. Despite the possibility, the courts are clearly far from cooperative (as far as Trump is concerned) – in Texas, the courts declared a drive through voting system permissible despite attempts from Republicans to prevent this. Further, in Nevada, the Trump campaign unsuccessfully tried to halt ballot-counting in Clark County, only to appeal to the Supreme Court after a lower court rejected the claims. Therefore, other legal remedies seem unlikely and not encouraging for the President.
The only real success the Trump campaign had this week was in Philadelphia, where a Judge ruled they could be within six feet of watching the canvassing process. But this has already been appealed to the Pennsylvania Supreme Court for slowing down the process.
It is no surprise that many believe that there is a way for Trump to overturn the election, securing a victory for presidency for the next four years. Not at least through litigation. Most of the litigation filed seems to be about access to the counting facility, which would not alter the outcome of the election. Some have raised unsubstantiated claims of fraud, but this is on a small scale. There is one glimmer of hope for Trump however. There is a current dispute over Pennsylvania ballots that arrived between election day and November 6th. Previously, the Pennsylvania Supreme Court ruled that these ballots could be counted, even if they did not have a legible postmark. The Pennsylvania Republican Party twice appealed to the Supreme Court. On its second appeal, the court said they would hear the case after the election but will not expedite the case. On Friday, in response to a request from Pennsylvania Republicans, Justice Samuel Alito ordered that all mail-in ballots received after election day must be segregated, even though election officials had already ordered counties to do that. Here, too, however, the number of ballots in question does not appear to be enough to change the outcome. Even if the Supreme Court takes up the case “the number of ballots involved is very small compared to the likely Biden victory.”
So why pursue a legal strategy that seems so clearly destined to fail? For Trump, the goal may not be to win the election but to cast uncertainty over the results, thereby encouraging the perception, that he is the victim of fraud and remains the rightful leader of his fervent base. If that is Trump’s strategy, it could prove costly for a historically polarized country. It won’t get him the votes he needs for a second term, but it will ensure the divisions he exacerbated will be harder to undo when he inevitably leaves office.
So, what now? Expect lots of arguments about illegitimate postal marks, recounts, missing ballots and the like. Even if Biden’s lead is irrefutable, such theatrics will create doubt and provide the scenery for Trumps cries of fraud. One thing is clear: if lawsuits drag past the 20th of January, preventing a victor from being declared, neither Trump nor Biden would be sworn in as president. In that scenario, the US law is pretty clear. “If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.” This would mean that Nancy Pelosi would assume the presidency, presumably not an eventuality Trump has in mind.
As Trump so often likes to say: “We will see what happens.Trump’s Litigation Battle”