Why Trump’s Legal Strategy is Bananas
We all like a good sequel. “Godfather 2” comes to mind. “Oceans 12” does not. But as much as we may enjoy getting the band back together and playing the hits one more time, Donald Trump’s post-election legal machinations are not not leading us to a redux of Bush vs. Gore.
What we know so far is largely based on the public emissions of President Trump’s personal attorney Rudy Giuliani, your crazy uncle who is not only off his meds, but took someone else’s meds which have made him even worse. And from a legal perspective, the “10 or so” lawsuits that Rudy plans to file are not legally coherent, and even if we pretend they have some merit and some chance of success, would not gain President Trump a second term.
For those too young to remember, or old enough to be nostalgic, lets briefly recap Bush vs. Gore. On the night of the 2000 presidential election, the networks called the decisive state of Florida for Al Gore. Then, they retracted that call and called it for George Bush. Then, as Al Gore was about to concede, retracted it again and declared it a toss-up. The preliminary results showed Bush with a 535 vote lead. out of 6,000,000 votes cast. That’s less than one vote per…well….a lot of other votes.
Much of Florida voted with push-through machines, meaning that you took a pointy stylus and pushed it through the ballot, creating a whole next to your candidate’s name that could be read by a scanner. The problem was that after a bunch of votes were cast on a given machine, the little tiny oval-shaped pieces of paper that were forced out of the ballot by the stylus (known as “chad’s” or “fucking chads” as the controversy went on) accumulated and blocked other chads from being successfully pushed through. So instead of holes, some ballots merely had either partial holes where the chads still hung onto the ballots, or dimples. And the debate on how to count those went all the way to the Supreme Court, which ultimately ruled 5–4 in a way that handed the election to George Bush.
Trump’s team, cognizant of the fact that there is a 6–3 Republican Supreme Court which includes three Trump appointees, is clearly lusting for a similar intervention. However, while a majority on the Supreme Court may WANT to help President Trump remain in office, there really is no credible path for them to do so.
Remember, the Supreme Court can only decide actual cases. They can’t just decide who they’d like to see as President. In order for them to act, there would have to be some plausible legal theory supported by actual facts adduced at the trial court. In Bush vs. Gore, the difference between the candidates was almost statistically non-existent. There was only one state involved. The race was still undecided with no candidate having been declared the winner. There was a clear legally disputed issue (how to count the ballots with the “hanging chads”) that arose organically, and there was a clear remedy the court could order which would resolve the matter.
Trump vs. Biden is very different. There is a declared winner who has already begun his transition, and none of the states in play are particularly close. By this I mean that while they aren’t landslides, they do involve leads of thousands or tens of thousands of votes. But more importantly, there are no issues that have arisen organically, Trump’s legal theories don’t lend themselves to any relevant relief, and Trump prevailing in only one of the states won’t get the job done. Let’s examine this in a bit more depth.
When I say that there are no disputes that have arisen organically, I mean that unlike Bush vs. Gore, there are no issues that clearly require a court to make a determination one way or another. Again, in a race with no winner, and a bunch of outstanding votes, the court in 2000 had no choice but to make some decision as to how to count (or not count) those votes. This situation is different. There are no obvious issues. Trump has simply decided he doesn’t like the results as they stand, so he has begun a fishing expedition for “fraud”. ANY kind of “fraud”. He has set up a hotline so anyone in the country can report things they believe were hincky. What could possibly go wrong with that?
Based on these “tips”, as well as the musings of various on-line conspiracy theorists, and presumably the little men who live in Rudy Giuliani’s teeth, the Trump campaign has come up with various theories involving their poll watchers not being able to stand close enough to the vote-counting, or poll-workers erecting cardboard barriers to protesters seeing in the windows of counting rooms, or fearsome Democratic operatives intimidating voters, or ballots being dumped in various bodies of water (rivers, creeks, punch bowls)around the globe.
Lets put aside all of the potential proof problems with these allegations and assume they are true. The fatal flaw in Trump’s strategy is that there is simply no remedy for most of these complaints. For example, let us assume that poll workers in Pennsylvania didn’t let Trump’s observers be as close as they’d have preferred to the counting. What does a court do about that? Once the ballots are removed from their mail-in envelopes, they are no longer identifiable as coming from a specific voter. There is nothing that the Court could order which would fix that problem. The justices can’t invalidate certain ballots. There’s no way to know which ones. All they could theoretically do is throw out the entire election and order a re-vote. But there are huge constitutional and logistical issues with that course of action. It’s simply not going to happen.
Similarly, let’s assume that poll-workers were wrong to erect visual barriers between protesters and those counting votes, or assume that Trump could prove that a batch of ballots was wrongly discarded. Again, what is the remedy?
Giuliani also talked about filing a “national lawsuit” to expose “rampant Democratic corruption” throughout the land. As someone who did pretty well in law school and litigated cases for 17 years before writing laws myself, I can’t begin to imagine what recognized legal cause of action would allow Mr. Giuliani to do that. Elections are run by the states and each state runs them differently. Most states are controlled by Republicans, including some of the states (Georgia, Arizona) currently at stake. A national lawsuit attacking numerous states all at once makes absolutely no legal sense. But let’s pretend it does!! The only possible remedy would be for the Supreme Court to declare “DEMOCRATS SUCK!!” and order Republicans to be declared the winners of every election. (I wouldn’t put that past Clarence Thomas actually).
There is one legal theory propounded by Trump which would, if successful, have a clean remedy. There is a statute in Pennsylvania that says that all mail-in ballots must arrive at the Office of Voter Services by election day. The Pennsylvania Supreme Court extended that by three days because of COVID. Trump alleges this is illegal, despite that fact that the ballots still have to be postmarked on or prior to Election Day. I think that’s wrong, but there’s no need to litigate that here. Let’s assume they are right. Justice Alito has ordered those late-arriving ballots to be segregated. So the Court could order those ballots simply not counted. This is what Trump’s incessant tweets about only counting “LEGAL” ballots is all about.
Of course, the optics of this are terrible. These are voters who did everything that was required of them. They are legitimate voters who filled out their ballots properly and sent them in on time. Nonetheless, their ballots arrived (according to Trump) too late to be counted. Why? Because he deliberately hired a mega-donor named William DeJoy to run the Postal Service in such a way to slow down delivery of the mail-in ballots. So Trump caused the ballots to arrive late and now wants to use their late arrival to discount them. Charming.
But none of this actually matters. The mathematical fact is that there aren’t enough late-arrive mail-in ballots to make up the deficit Trump is facing. When all ballots except those arriving late are counted, Trump will be behind in Pennsylvania by 60–90,000 votes. I’m told there are less than 10,000 late-arriving mail-in ballots. The Supreme Court is simply not going to take a case where it’s ruling will have no practical effect.
Finally, another real hurdle faced by Trump is that unlike Bush vs Gore, there are numerous states involved. Issuing a ruling that flips the result in one state (like Florida in 2000) is extremely controversial for obvious reasons. But to make a difference in 2020, the Supreme Court would have to issue multiple decisions, based on totally different legal theories, in at least three different states, crafting previously unheard of and draconian remedies, all to the benefit of the Republicans. That wouldn’t be the court just putting their finger on the scale. It would be them dropping an entire Buick LaSabre on the scale. While this is physically possible, as a practical matter, in order to do that the Court would have to abandon any pretense of us still having a democracy where the people’s votes matter. I just don’t believe that even this Supreme Court is prepared to do that.
The bottom line is that there is no legal path to victory for Trump. And the sooner that the Republican Party begins to publicly tell the President that, the faster our country can begin to heal.