This week, as President Donald Trump persisted in claiming election fraud in the absence of hard evidence, Politico Magazine asked a dozen experts in election law whether they saw reason to doubt that Joe Biden would be duly inaugurated in January. Could the election results be illegitimate? If not, is there a chance Trump would find a way to game the system anyway? And what’s the biggest weak spot in the process from here on?
Normally when we survey experts, we’ll get a range of answers—a breadth that reflects their backgrounds and particular corners of expertise. Not this time. In what might offer some reassurance to the members of both parties who are ready to accept the state results and move on, they all resoundingly said they’re confident Biden will be sworn in come January, and that the legal challenges Trump and his supporters are currently mounting are meritless.
“There is simply no evidence of fraud. Nor is there any other realistic basis for altering the apparent outcome,” wrote Steven F. Huefner, a law professor at the Ohio State University. That assessment was backed up by Lawrence Douglas, a law professor at Amherst College who has for more than a year been studying what could go wrong with this election. He saw “no reason whatsoever to question the legitimacy of the process or the trustworthiness of the results.”
As for other gamesmanship from Trump’s camp: “I have tried to imagine how he could even possibly accomplish” stopping Biden’s inauguration, wrote Lisa Manheim, author of The Limits of Presidential Power: A Citizen’s Guide to the Law. “And I just can’t figure it out.”…
New York University constitutional law professor Richard Pildes similarly sees this as the real Trump strategy, unlikely as it is to bear fruit: “The Trump campaign can’t have any hope of overturning in the courts the popular vote in three states, based on what it has filed so far. These suits have a different audience and a different aim: to shape a ‘lost cause’ narrative and to set Republican legislatures up to defy the popular vote in their states and claim the authority to appoint electors themselves. No state legislature has ever done that since the law governing the Electoral College process was passed in 1887, and even if one or more did that this year, there are further steps in the process that would block those actions from having any effect on the outcome.”
Florida State University law professor Michael Morley pointed to weaknesses in the Electoral Count Act of 1887, which guides how Congress counts electoral votes and determines the winner. “The ECA is written in archaic language, is ambiguous in several crucial respects and leaves some key issues unresolved,” he wrote. One issue, for example, is that “it is unclear whether Congress may, or even must, reject votes cast by so-called ‘faithless electors’” who vote against their own state’s presidential choice. Nevertheless, Morley is confident that “based on the current Electoral College projections and the vote tallies within the swing states, it appears extremely unlikely that the ECA’s deficiencies will impact the results of this election. It remains a serious problem, however—one that Congress should seek to address well in advance of future presidential elections.”…
According to Hasen, who wrote Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy: “Trump cannot litigate his way to victory; the only path would be a brute force political one that would disregard the rule of law. Any strategy based upon trying to get Republican state legislators to try to stop the certification of the vote and appoint their own slate of electors would be a legally unsupported naked power play. State legislatures would only have the power at this point to appoint 2020 electors if voters failed to make a choice on Election Day. But voters did make a choice, and it would be a violation of the rule of law and democratic norms to try to get state legislatures to overturn the will of the people.”