There have been a number of developments since I posted this morning, Can Donald Trump Litigate His Way to Victory via the Supreme Court? Not Likely After networks called Wisconsin for Biden with about a 20,000 vote lead and counting complete, the Trump campaign said it would seek a recount. The recount effort is highly unlikely to be successful, a point former Wisconsin Governor Scott Walker acknowledged. Statewide recounts rarely work according to a Fairvote study, shifting an average of 282 votes.
The Trump campaign is also suing to try to temporarily stop the count in Michigan until additional procedures are put in place for observing the count. This lawsuit comes very late and is likely to be get the same judicial reception as the Nevada suit that lost in the Nevada Supreme Court unanimously. Allies of the campaign also engaged in a mini-Brooks Brothers riot trying to stop the counting in Detroit. As Josh Barro says, “Kind of a weird thing to do in a state where Trump is already trailing in the count.” Of course in Nevada and Arizona, where the campaign is behind, the Trump campaign is pushing to extend the count and make sure every last vote is counted.
The Trump campaign also just filed in the Supreme Court to intervene in the already existing dispute over ballots arriving over the next three days pursuant to the Pennsylvania Supreme Court order. No doubt there will be a request from one of the parties to have those ballots (which have been segregated) not included in the final count.
What to make of all of this activity? First, the effort is to slow the vote in places where the Trump campaign is behind so that these states are not called for Biden leading to a call of the Presidency for him should Biden reach 270 votes. Optically that makes it very hard for Trump. The concomitant effort is to push for further counting where Trump is behind to help him reach 270.
On top of that, the hope is that these Hail Mary legal plays could lead to court intervention to throw out votes and help Trump capture one of these states. This is possible but very unlikely for reasons Ned Foley, Joey Fishkin, and I have all given.
Finally, and most disturbingly, the effort is perhaps one to cast doubt on the legitimacy of a Biden presidency should he win. We always knew Trump would claim without evidence that fraud cost him the election. These suits let him pile up what might appear to some supporters as evidence but are actually unsupported assertions of illegality.