Republican presidential candidate Donald Trump speaks to a crowd of supporters during a campaign rally in Phoenix, Arizona USA. 2 Of November 2020 (Shutterstock)
By Elie Mystal, The Nation
I sincerely hope that this is the last column I have to write about some wackadoodle legal case that has been brought by Donald Trump. When all the votes are counted, Trump appears likely to lose the Electoral College in the race for president. His attempts to overturn that result in the courts is likely to fail as well.
I know people are still unsure of the result. We, as a nation, have been repeatedly abused by Trump and his lawlessness. Trump seems to have a preternatural ability to speak lies and turn them into reality, either through raw political power or legal action. His premature declarations of victory can induce PTSD among people who remember all the other times he got away with violations of laws or norms.
But it’s not going to work this time. Trump’s path to Electoral College victory required him to hold nearly all the states he won in 2016, and, while the race remains tight and uncertain, he does not appear to be doing it. As of this writing, multiple news outlets have called Wisconsin and Michigan for Joe Biden, and the second congressional district in Nebraska. Those are all areas Trump won in 2016. If Biden holds onto Nevada (which Hillary Clinton won in 2016 but has not been called for Biden) and wins Arizona (where he is leading but votes are still being counted), that’s the ballgame. Biden would get to 270 Electoral College votes and victory.
Even if Biden should lose one of these states, Pennsylvania and Georgia, two other states Trump won in 2016, are still counting ballots. The Biden campaign feels “confident” about Pennsylvania, and Georgia could still turn toward the Democrats. For Trump, it’s hard to make the math add up.
In response, the Trump campaign has turned to the courts. It has filed a lawsuit in Michigan and vowed to demand a recount in Wisconsin. It’s filed a lawsuit in Georgia to “segregate” valid absentee ballots received after Election Day from ballots received by Election Day. Pennsylvania has already voluntarily decided to do that anyway, but Trump has threatened to file suit there too. Frankly, any state that is counting votes Trump thinks won’t help him is being threatened with a lawsuit. Conversely, in Arizona and Nevada, two states where continuing to count late-arriving ballots seems to be helping Trump, no lawsuits have been filed.
Trump himself has promised to go directly to the Supreme Court—which he can’t do, since these suits have to start in the lower courts and be appealed. Theoretically, it is possible that one of them could make its way to the high court, and because Trump and Mitch McConnell have stacked it with conservative justices, and because those justices were eager to help limit early voting in the run-up to the election, people are worried that it will step in and overturn the results. I myself have spent most of the weeks since Ruth Bader Ginsburg’s death worrying that Amy Coney Barrett would hand-deliver the presidency back to Trump.
But we are not in the scenario that has fueled my nightmares. Once you adjust for the fact that this election was closer than the pollsters predicted, Biden is in as strong a position to fend off court challenges as one could reasonably hope for.
That’s because he appears to be on a path to winning. And he appears to be on this path based on votes that were received by Election Day. For Trump to change such a result, he would have to convince the court to throw out votes that have already been received and counted by the time his lawsuit reaches the court, and Trump would have to shoot that moon in more than one state.
It’s important to recognize that most of the bad court rulings we saw in the run-up to the election involved questions of whether votes received after Election Day had to be counted. Because the Trump administration gutted the post office, there are an unknown number of people who mailed in ballots that were not received by November 3. The US Postal Service is still resisting court orders to find and deliver an estimated 300,000 outstanding ballots. Those votes should be counted, but Republican-controlled courts have consistently tried to disenfranchise those voters.
If Biden truly needed those votes to count in order to win, I’d be more worried. I believe conservatives on the court are prepared to throw out those votes in order to help Trump. But Biden doesn’t appear to need votes that were cast before the election but were received after in order to get the votes he needs. Biden is ahead based on votes that were received by Election Day in states like Michigan and Wisconsin. The “delay” in announcing those totals has not been caused by states waiting to receive additional ballots; it’s been caused by states counting ballots they’ve already received. In fact, some states have taken longer to count because Republicans wouldn’t allow them to start counting mail-in ballots as they received them.
There’s just no legal precedent or principle for throwing out ballots that have been received by Election Day and counted by the states. None. Mail-in ballots are legal, and millions of citizens relied on them to cast their vote. Many dropped off their ballots by hand at official locations to make sure their votes would arrive by Election Day. To throw out those ballots is to disenfranchise people who voted timely and legally, long after the point where they could choose to vote some other way.
There is no good argument for courts to prevent those votes from being counted, and it’s worth noting that the argument against counting mail-in ballots in, say, Pennsylvania, is the exact opposite of Trump’s argument to continue counting mail-in votes in Arizona and Nevada, which he hopes will sling him past Biden’s lead.
I generally take a dim view of conservative justices on the Supreme Court. But it would be extreme, even for them, to throw out valid, timely votes because they don’t like the candidate who might receive them. Trump supporters around the country are chanting “Stop the count,” but that’s not actually possible. The court can’t “stop” a count; in most places, it would have to “change” a count that has already been completed.
And the court would have to do that in a number of states. As a reminder, in 2000 when the Supreme Court threw the election to George W. Bush, the issue there concerned one state, Florida, that held the Electoral College margin in the balance. To win this election, the Trump campaign would have to somehow overturn the results in several states. Trump’s easiest path to 270 involves: keeping Georgia, counting enough ballots to come from behind to win Arizona or Nevada, and throwing out enough ballots to win Pennsylvania. Or he’d have to keep Georgia, win Pennsylvania, and flip Michigan or Wisconsin, two states that have already been called against him.
I believe that’s too much ballot burning for the Supreme Court to do. There’s no reasonable principle under which it can throw out votes in Pennsylvania and Michigan but keep counting the votes in Arizona and Nevada, and do it all to try to change the Electoral College outcome in favor of a man who just lost the popular vote for the second time in a row. A move like that from the Supreme Court would be viewed as facially illegitimate, and risk sparking real civil unrest. Maybe Justice Clarence Thomas and alleged attempted rapist Brett Kavanaugh would exchange high-fives while getting revenge on Democrats, but I don’t think Chief Justice John Roberts would go along, and I don’t think Justice Neil Gorsuch would either.
And, as a final wrinkle, even if the Supreme Court issued such a ruling—which, let’s be clear, would amount to a coup d’état—there would be a lot of pressure on Democratic-controlled state governments in Pennsylvania and potentially Michigan to simply ignore it and appoint a slate of presidential electors based on the votes they’ve already counted in their states. If the Supreme Court wants to burn down the whole republic, it’s not a given that the states would go along.
Lots of people have unpleasant flashbacks to 2000. Everybody can remember some time Trump did something lawless and got away with it. But this time is different. If it turns out that Donald Trump loses this presidential election outright, based on votes that were received by Election Day, even his courts won’t be able to save him.