WASHINGTON — With the presidential election rapidly slipping away from him, President Donald Trump has initiated a patchwork strategy of legal challenges to contest vote counting in states around the country to underpin his unsubstantiated claims the election is being stolen.
Unfortunately for him, none of it is likely to work, according to legal experts.
It’s not just that the approach overall is more of a public relations pitch seemingly aimed at sowing doubt on the election results than it is a comprehensive legal strategy, these experts from across the country said. It’s that the individual cases themselves have major flaws, and are unlikely to change the outcome of the election.
Lisa Manheim, a University of Washington election law expert who clerked for Supreme Court Justice Anthony Kennedy, told Raw Story that it makes sense that people are feeling confused and that this week has felt generally destabilizing, because Trump’s rhetoric is both inflammatory, and also doesn’t match the facts on the ground nor how the law itself works.
“If the Trump campaign wants to prevail through a court battle, it is not proceeding in a way that makes much sense,” she said. “There's three basic requirements of a successful legal claim, which are, you need to have a legal basis for your argument, you need to be able to substantiate it with sound evidence, and then you need to be able to identify a remedy that will fit your claim and also actually helps you going forward. And everything I've seen so far from the Trump campaign fails with respect to at least one of these three requirements.”
The first of those three categories is the easiest to identify. Trump held a wild news conference from the White House briefing room Thursday night making vague and unsubstantiated claims of “tremendous corruption and fraud,” and saying that, “If you count the legal votes, I easily win. If you count the illegal votes, they can try to steal the election from us.”
Apart from the fact that Trump's statements are inaccurate, his argument has no legal underpinning, said Rachael Cobb, chair of Suffolk University's political science and legal studies department. In other words, there is no legal argument being made alleging a specific law has been broken, so there’s nothing for a court to hear. And the argument overall is incongruent, she said.
“Their top line argument is in places where they're winning, the election went well, and in places where they're losing the election is illegitimate,” Cobb said. “The problem is that Republicans won [down ballot] in both places, and so it's very hard to imagine how we could have an illegitimate election for one office, but a legitimate election for all other offices.”
The same goes for Trump’s assertion earlier in the week that, “We'll be going to the U.S. Supreme Court. We want all voting to stop.”
Adav Noti, who has brought cases to the Supreme Court as the top lawyer for the democracy reform group, the Campaign Legal Center, said that’s not exactly how that works.
“He seems to think that you can just go to the Supreme Court and say, ‘I think I won the election.’ I mean, that's not that's not how any federal litigation works, much less election litigation. You have to have a claim that your rights have been violated in some way, and there is no such claim, yet," Noti said. “Other than crazy misinformation type stuff that's floating around on Facebook, I'm not aware of anything that could give rise to a claim like that, and even if there were, it would have to be significant enough to actually affect the election result”
The most substantial case the campaign has so far brought is in Pennsylvania, where they signed on to a case already pending before the Supreme Court challenging the Keystone State’s mail-in ballot deadline extension.
In that case, following Manheim’s three-prong test, there is a legal claim: That state executive officials and the Pennsylvania Supreme Court infringed on the state legislature’s right to set election regulations by extending the deadline. There is also evidence: State officials did indeed go around the legislature and extend the deadline, so ballots can be received up to three days after the election, so long as they’re postmarked on November 3 or earlier.
The problem for the Trump campaign is that there may not be any remedy that would actually help his campaign at this point. Biden was ahead by more than 10,000 votes in Pennsylvania Friday afternoon, a number that looked likely to grow as more mail-in ballots were counted. It’s not clear that even erasing all ballots that arrived by mail after Nov. 3 would eat into that lead. And even if it did, Biden’s victory in Arizona, Wisconsin and Michigan, paired with leads in Georgia and Nevada would be enough to win the election without Pennsylvania, anyway.
Rebecca Green, co-director of the election law program at the College of William and Mary said the Supreme Court has also shown some aversion to the case, when it refused to grant a stay on the Pennsylvania Supreme Court's decision earlier this year, thereby allowing voters to cast their ballots under the extended system. That comes despite fears on the Left that the three Supreme Court justices Trump appointed would hand him the election.
“It is possible that on the merits, the Supreme Court could agree with the Trump administration and the GOP lawmakers argument about the power of the legislature, but I don't think it follows that they would then invalidate any votes as a consequence,” she said. “The court, to protect, its legitimacy, would be very careful and cautious about handing a victory that has holes in it to the President.”
The administration has made several small-ball claims about being able to have “meaningful access” to the vote count. While this might sow doubt in some segment of the population about how ballots are being counted, there is no legal process to throw out votes because of that, the experts said.
Trump campaign figures from Eric Trump to Pam Bondi have made various unsubstantiated allegations of fraud, particularly about ballots being counted in Philadelphia. But there has yet to be any evidence shown to a court, let alone the public, that anything fraudulent happened.
Instead, they won a small victory: A judge ruled they can move their election observers from 25 feet to six feet away from the votes being counted in Pennsylvania.
“The campaign has statutory rights in each of these states to have someone be able to observe and watch what's happening,” said Derek Muller, a University of Iowa election law professor. “To the extent that you win the challenge, well, then you get to go observe, right? And if somebody denies you, then they're saying the existing observation opportunities are enough. It's not enough to throw out an election. It's not enough to throw out the votes. They’re going to need something else in order to do that.”
Then there’s the recounts. The Trump campaign has suggested it will ask for recounts in some states. They shouldn’t get their hopes up. Recounts usually only turn a few hundred votes tops, according to research from FairVote. So it could matter if just a few votes in one state made the difference between a Trump second term or a Biden presidency.
Think Florida in 2000, when the election was decided by fewer than 600 votes. But with several competitive states tipping toward former Vice President Joe Biden on Friday by anywhere 2,000 to more than 150,000 votes as more mail-in ballots are tabulated, Trump's hopes at swinging the election with a last-minute recount are slipping further away, too.