My new one at The Atlantic: “Trump Needs Three Consecutive Hail Mary Passes; The president’s litigation strategy is unlikely to succeed, but it’s doing great harm in the meantime.”

I have written this piece for The Atlantic. It begins:

Despite the clear math showing that Joe Biden has won the election, President Donald Trump has refused to concede. He has directed his legal team to keep on fighting to try to overturn the results of the election, including in a new 105-page federal-court filing in Pennsylvania. These legal maneuvers are unlikely to pay off in the form of a second term for Trump; he would need the equivalent of three consecutive Hail Mary passes to stay in office.

But what Trump and his legal team are doing can nevertheless cause real harm to the country going forward, should millions of people believe Trump’s false statements that Biden won the election through fraud. It is this near certainty, and not the long-shot possibility of Trump staying in office, that is reason for grave concern….

The lawsuits filed in Pennsylvania and elsewhere are highly unlikely to go anywhere. The most recent complaint filed in federal court in Pennsylvania amounts to virtually nothing. Its core idea, that the different procedures for voting by mail and voting in person constitute an equal-protection violation, is ludicrous.

First, the differences between mail-in and absentee voting were obvious for months and nothing prevented the Trump campaign from suing earlier over this; a late suit now is barred by a legal doctrine called laches, which says that you cannot simply wait until after an election you don’t win to sue over an election problem you could see beforehand.

Further, having different procedures for mail-in and in-person balloting does not create an equal-protection violation. If this claim succeeds, it would mean that voting was unconstitutional across the entire country. The claim is especially weak when voters had the choice to vote using either system. The other claims in the complaint are mostly retreads of issues that have been rejected legally, factually, or both in other lawsuits. There has been no proof of widespread fraud.

Even if some of the claims were to have merit, a strong argument exists that federal courts should not get involved. The Electoral Count Act, passed after the disputed 1876 presidential election, conceives of a state role, not a federal role, for resolving fights over the election, and federal courts will likely want to let states decide. A federal ruling could endanger the ability of a state to submit its Electoral College votes by the December 8 safe-harbor deadline; Congress cannot challenge Electoral College slates submitted by that date.

More important, this quixotic lawsuit presents no path to an ultimate Trump victory. The Trump campaign has not provided a good reason for a federal court to step in and delay certification. Nor has it provided any evidence showing that there were tens of thousands of ballots cast illegally for Biden or of legal ballots not counted for Trump. That kind of showing should be necessary to get any relief, and likely from a state rather than a federal court. Biden is currently ahead by about 45,000 votes, and may well be ahead by 100,000 when all the votes are counted.

And even if Trump somehow overturned the results in Pennsylvania, that would not be enough to flip the results in the Electoral College. In Arizona, where Biden now leads by about 15,000 votes, the Trump campaign has filed a lawsuit that could call at most 200 votes into question. And even overturning Pennsylvania and Arizona is not enough to make up for Biden being 36 votes beyond the Electoral College threshhold.

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