As he did in 2016, Donald Trump is constantly claiming that if he loses in November it will be proof that the vote was rigged against him. He tweets regularly, contrary to the available evidence, that mail-in voting will lead to massive amounts of voter fraud when such fraud hasn’t been a significant problem in any presidential election in modern history.
Because Trump seems unlikely to accept the results of the vote if he loses, there is widespread speculation that Trump’s will litigate every ballot it can. But Jessica Levinson, a law professor at Loyola Marymount University, tells AlterNet that the Trump campaign might not have to file a challenge itself, as his supporters might claim that they had been disenfranchised by some sort of fictitious scheme to “rig” the vote. “It could come from the Trump campaign or it could be psychologically supported by the Trump campaign,” she says.
If it did come from the Trump campaign, Levinson says they would likely make arguments that would echo claims Trump has made repeatedly. “What the Trump campaign will argue is that too many people voted and there was fraud in the system. They may say ineligible people got ballots,” Levinson says. “They might say dead people voted. They’ll use all of the typical voter fraud tropes.”
Levinson doesn’t think any of these arguments would result in the election being swung in Trump’s favor, but she says it could be a way for the campaign to make the election appear to have been illegitimate.
“A likely scenario would be that it looks like Trump is doing decently well in the Electoral College on election night, but then as more votes are counted because we’re going to have this influx of vote-by-mail and not all of them need to be in and counted by election day, then it starts to look better and better for Biden,” Levinson says. “Then these lawsuits would be a form of psychological warfare. They would serve the purpose of calling into question the changing result” as absentees were counted in the days and weeks after November 3.
If a lawsuit claimed that there was a violation of state law during the electoral process, the relevant state’s supreme court would have the final word on the matter. If there’s a claim that a federal law was violated, the case would go to a federal court, and it could end up making its way to the U.S. Supreme Court. Any lawsuit that held up certifying a winner in some way would have to be resolved by January 20th, because otherwise the Presidential Succession Act of 1947 dictates that the Speaker of the House, likely Rep. Nancy Pelosi (D-CA), would become president.
“That would be a very American way to get the first female president,” Levinson jokes.
Levinson says that Chief Justice John Roberts, who is known as a fierce defender of the Court’s institutional legitimacy, wouldn’t want to have the election be settled by the Supreme Court, and would prefer that any lawsuit would be resolved by a state court or a lower federal court. She says if it does end up in the Supreme Court, it’s very likely that the case wouldn’t be strong enough and that a majority would vote against Trump’s side. She says she doesn’t see a “baseless” case helping Trump stay in office.
And Nicholas Stephanopoulos, a law professor at Harvard University, tells AlterNet that he can imagine a scenario where the Democrats are the ones suing over election results. “One bad scenario is that a swing state’s election is close and that many mail-in ballots — enough to maybe change the result of the election — arrive too late to be counted because of deliberate delays by the post office,” Stephanopoulos says. “The disadvantaged side (probably Democrats) would then sue, arguing that the mail-in voters’ right to vote was burdened by the post office delays and by the state’s policy of not counting late-arrived ballots.”
Stephanopoulos says he expects that the current Supreme Court would be “hostile to this claim despite its normative appeal.” He says the Court has never ruled in favor of a voting rights plaintiff, and it “would be unlikely to start when its decision might benefit a Democrat and when it could plausibly deny the claim.”
Adam Winkler, a law professor at UCLA, tells AlterNet that if the results were so close that there was no clear winner, the 12th Amendment would throw the election to the House where each state’s delegation would cast a vote to decide who would be the next president. “It’s got to be in the back of Mitch McConnell’s mind that there’s a 12th Amendment remedy here that keeps Donald Trump in the presidency without overturning democracy, without overturning the Constitution, without doing anything but following the Constitution,” Winkler says. “A majority of House delegations are Republican-controlled.”
It wouldn’t be the first time that’s happened. John Quincy Adams was elected president in 1824 by a vote in the House despite the fact he had won fewer Electoral College votes than Andrew Jackson. Winkler says he doesn’t think it’s a likely scenario, but it’s within the realm of possibility.
It’s impossible to predict exactly how the election will play out, but with so many states unprepared for a surge of mail-in voting, Trump will probably be able to point to various glitches to claim there was voter fraud throughout the country. Levinson says she doesn’t think that’ll work, but it could make the time between election day and inauguration day quite tumultuous.
“The best we can extrapolate from past history is that the problems won’t be rampant voter fraud. They’ll be mistakes. They’ll be confusion,” Levinson says. “They’ll be mistakes based on lack of education and lack of infrastructure. The arguments President Trump is making about purposeful voter fraud I do not think would be successful because it’s simply not something that exists in reality on the scale that it would change a presidential election.”