Alana Abramson for TIME:
Shortly after the Associated Press projected that Joe Biden would win enough electoral college votes to defeat President Donald Trump, Trump released a statement saying that his campaign would go to court Monday to fight the outcome. “Networks don’t get to decide elections,” Trump’s personal attorney, Rudy Giuliani, said later at a press event at a landscaping company in Philadelphia, “Courts do.”
That is, of course, not the case. With the notable exception of the 2000 presidential race, which was effectively decided by the Supreme Court in Bush v. Gore, it is voters who decide elections. And that, legal experts say, is the main flaw with Trump’s strategy: Biden has won too many votes for the Trump campaign to mount any legal challenge that would actually change the outcome.
For an election to be successfully litigated, experts say, the margins between the candidates have to be exceedingly close. The dispute between George W. Bush and Al Gore two decades ago, for example, hinged on just 537 votes in Florida. Election litigation is only consequential, says Nathaniel Persily, a professor at Stanford Law School, “if the number of contested ballots exceeds the margin of victory.”
As of November 7, Biden is leading Trump by over 4 million votes, according to the Associated Press. The state-by-state count that determines the electoral college count is even more daunting for the President. Biden leads Trump by nearly 35,000 votes in Pennsylvania, 25,700 in Nevada, 20,500 in Arizona and 7,250 in Georgia. Trump needed victories in nearly all of these states to amass 270 electoral votes, and the Associated Press has called every one but Georgia in favor of Biden. (Other outlets have withheld calling Arizona for Biden). Recount laws vary by state, but in every state except Georgia, the margins appear too large for the states to automatically issue one.
The campaign has other legal options beyond recounts, but experts say those are also unlikely to succeed. The Trump team can, for example, contest the validity of the remaining ballots that have yet to be counted. Or they can sue to get some ballots thrown out on the basis that they were filled out unlawfully. So far, their record on both counts is not encouraging for the President.
Prior to the election, Republicans in Texas, including an activist and a local legislator, tried to get ballots thrown out in Harris County, where they argued that nearly 130,000 ballots cast at a “drive-through” polling location were unconstitutional. That argument did not pass muster in either state or federal courts. In Nevada, the Trump campaign unsuccessfully tried to sue to halt ballot-counting in Clark County, only to appeal to the Supreme Court after a lower court rejected the claims. (The campaign has tentatively reached a settlement with Nevada officials to allow increased access).
The post-election legal landscape doesn’t look much better for Trump, as the barrage of litigation his campaign has already filed since November 3 shows. In the past four days, the campaign has filed more than half a dozen lawsuits in state and federal courts in Pennsylvania, Nevada, Michigan and Georgia. Most of these cases attempt to push for more access to the ballot counting process, and allege without evidence that fraudulent votes have been cast. They’ve seen little success. Judges in Michigan, Nevada, and Georgia have collectively rejected three cases.
The only real success the Trump campaign had this week was in Philadelphia, where a Judge ruled they could be within six feet of watching the canvassing process. But even that decision has already been appealed to the Pennsylvania Supreme Court, and legal experts say that, at a minimum, it will merely slow down the process.