I sincerely hope this will be the last column I have to write about a Wackadoodle litigation brought up by Donald Trump. When all the votes are counted, Trump will likely lose the electoral college in the race for president. His attempts to overturn that outcome in court are also likely to fail.
I know people are still not sure about the outcome. We as a nation have been repeatedly abused by Trump and his lawlessness. Trump appears to have a supernatural ability to speak lies and turn them into reality, either through raw political power or through legal action. His early declarations of victory can lead to PTSD in people who remember all of the other times he got away with breaking laws or norms.
But this time it won’t work. Trump’s path to victory on electoral college required him to hold almost all of the states he won in 2016, and while the race remains tight and uncertain, he doesn’t seem to be doing it. As of this writing, several Wisconsin and Michigan news outlets have called for Joe Biden and the Second Congressional District in Nebraska. These are all areas that Trump won in 2016. If Biden sticks to Nevada (which Hillary Clinton won in 2016 but was not called up to Biden) and Arizona wins (where he leads but the votes are still counted), that’s the ball game. Biden would get 270 votes and the electoral college victory.
Even if Biden loses one of those states, Pennsylvania and Georgia, two other states Trump won in 2016, still count the ballots. The Biden campaign is “confident” about Pennsylvania, and Georgia could still turn to the Democrats. It’s difficult for Trump to add up the math.
In response, the Trump campaign has turned to the courts. It has filed a lawsuit in Michigan and vowed to request a recount in Wisconsin. A lawsuit has been filed in Georgia to “separate” valid postal ballot papers received after election day from ballots received on election day. Pennsylvania has already voluntarily decided to do so, but Trump has threatened to file a lawsuit there too. Frankly, any state that counts votes that Trump believes won’t help him is being threatened with a lawsuit. Conversely, no lawsuits have been filed in Arizona and Nevada, two states where continued counting of late-arriving ballots appears to be helping Trump.
Trump himself has promised to go straight to the Supreme Court – which he cannot do as these lawsuits begin and need to be appealed in the lower courts. In theory, it is possible that one of them could find their way to court, and because Trump and Mitch McConnell stacked it with Conservative judges, and because those judges were eager to restrict early voting in the run-up to the election. People are concerned that it will step in and knock the results over. I myself have spent most of the weeks since Ruth Bader Ginsburg’s death worrying that Amy Coney Barrett would hand the presidency back to Trump.
But we’re not in the scenario that fueled my nightmares. Once you adjust to the fact that this election was closer than pollers predicted, Biden is in as strong a position to fend off legal challenges as one could reasonably hope.
That’s because he seems to be on his way to victory. And he seems to be on that path based on the votes that were received by election day. For Trump to change such an outcome, he would have to convince the court to cast votes that have already been received and counted when his lawsuit reaches the court, and Trump would have to shoot that moon in more than one state.
It is important to realize that most of the bad court judgments that we saw in the run-up to the elections were about whether votes were received after Election day had to be counted. With the Trump administration gutted the post office, there are an unknown number of people who sent in ballot papers that weren’t received by November 3rd. The U.S. Postal Service is still defying court orders to find and deliver an estimated 300,000 outstanding ballots. Those votes should be counted, but the Republican-controlled courts have consistently sought to disenfranchise these voters.
If Biden really needed those votes to win, I would be more concerned. I think the Conservatives at Court are ready to cast these votes to help Trump. But Biden doesn’t seem to need votes that were cast before the election but were received afterwards to get the votes he needs. Biden is ahead based on votes received in states like Michigan and Wisconsin by election day. The “delay” in announcing these totals was not caused by states waiting to receive additional ballots. This was caused by states counting voting papers already received. In fact, some states took longer to count because Republicans didn’t allow them to count mail-in ballots once they received them.
There is simply no legal precedent or policy for casting ballot papers that are received by election day and counted by states. None. Postal ballots are legal and millions of citizens have relied on them to cast their votes. Many hand-cast their ballots in official locations to ensure their votes would have been received by election day. Throwing these ballots away means disenfranchising people who voted in a timely and legal manner, long after the point at which they could choose another election.
There isn’t a good argument for courts to prevent those votes from being counted, and it’s worth noting that the arguments against counting mail-in ballots in, say, Pennsylvania are the exact opposite of Trump’s argument about continuing mail-in – Counting votes in Arizona and Nevada, which he hopes will knock him past Biden’s leadership.
I generally don’t see Conservative Supreme Court justices badly. But it would be extreme even for them to cast valid, timely votes because they dislike the candidate who might get them. Trump supporters across the country are singing “Stop the count,” but that’s actually not possible. The court cannot “stop” a count. In most cases you 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 cast the election of George W. Bush, it was about a state, Florida, that balanced the electoral college’s leeway. To win this election, the Trump campaign would have to somehow overturn the results in several states. Trumps the easiest The path to 270 involves: keeping Georgia, counting enough ballots to come from behind to win Arizona or Nevada, and throwing out enough ballot papers to win Pennsylvania. Or he would have to keep Georgia, win Pennsylvania, and flip Michigan or Wisconsin, two states that have already been called against him.
I think that’s too much of a Supreme Court ballot. There is no sane principle by which they can cast votes in Pennsylvania and Michigan, but continue to count the votes in Arizona and Nevada and do whatever they can to try to change the vote of the electoral college in favor of a man who is currently voting for the Has lost land for the second time in a row. Such a move by the Supreme Court would be considered illegal and could lead to real unrest. Perhaps Justice Clarence Thomas and the alleged rape attempt Brett Kavanaugh would exchange high fives while taking revenge on Democrats, but I don’t think Attorney General John Roberts would, nor do I believe Justice Neil Gorsuch would.
And, as a final wrinkle, even if the Supreme Court were to make such a decision – which, as we would clearly say, would constitute a coup – there would be a lot of pressure on the democratically controlled state governments in Pennsylvania and possibly Michigan, just ignore it and appoint a list of presidential elections based on the votes they have already counted in their states. If the Supreme Court wants to burn the entire republic to the ground, it is not a given that states should participate.
A lot of people have awkward flashbacks to 2000. Anyone can remember a time when Trump did something outlawed and got away with it. But this time it’s different. If Donald Trump turns out to lose this presidential election instantly because of the votes received by election day, even his courts cannot save him.