vision 2020

Trump’s Only Credible Legal Strategy Won’t Be Enough

SCOTUS could give Trump some help in Pennsylvania, but not enough to matter. Photo: Robert Alexander/Getty Images

President Trump has still not conceded defeat in the 2020 election and may never do so. As my colleague Jonathan Chait explains, the Trump campaign’s legal strategy for contesting the results involves a mishmash of unsupported fraud allegations alongside going-for-the-capillaries challenges of very small numbers of ballots.

At this point, notwithstanding the relatively strong support Trump’s refusal to concede has gained from Republicans (especially those aspiring to succeed him as the party’s presidential nominee), there’s little prospect of any legal gambit that could keep the outcome in doubt sufficiently to support an outright election theft. In particular, the specter of Republican state legislators in states like Pennsylvania taking the appointment of presidential electors into their own hands if the results were being credibly contested hasn’t materialized at all.

The only shred of hope for Trump in the courts — a tiny and rapidly diminishing shred that wouldn’t be enough to overturn the election in any case — does not involve lurid allegations of Democratic fraud. Trump’s legal team has joined a continuing effort by Pennsylvania Republicans to convince the U.S. Supreme Court to strike down an earlier state-court decision allowing mail ballots postmarked by November 3 to be counted if they were received by November 6. On October 19, SCOTUS split 4-4 on a GOP petition to overrule the state court on grounds that it had usurped the state legislature’s exclusive right to set election rules. That deadlock had the effect of allowing the mail-ballot extension to take effect. Now that Amy Coney Barrett has joined the Court, there is reason to think she might join Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh in supporting the GOP position. Indeed, in anticipation of that possibility, Pennsylvania election officials ordered before the election that ballots received between November 3 and November 6 be “segregated” in order to remove a potential cloud over the rest of the returns.

Pennsylvania Republicans created a small stir over this last weekend by successfully petitioning Alito (the justice responsible for handling emergency orders from that state) to order county-level compliance with the state instruction to segregate late-arriving mail ballots (though there was no particular evidence that they were not already doing so). The court may soon rule on the renewed plea to disallow these ballots entirely. The problem for the GOP is that there do not appear to be enough of them to matter, as the Washington Post noted:

[Pennsylvania Secretary of State Kathy] Boockvar has said a very small number of ballots are at stake and that the current vote count only includes ballots that arrived by Election Day.

“So I think, no matter what happens, I don’t think it’s going to be a tremendous impact on this race,” she told CNN on Thursday.

In Philadelphia, for example, just 500 ballots came in Wednesday and Thursday and were set aside, according to city officials.

Election-law expert Rick Hasen estimates that about 10,000 total votes were received between November 3 and November 6, and some of them, of course, were cast for Donald Trump. At the moment, Biden’s lead in the Keystone State stands at 45,000. And even if Trump could somehow flip (or call into question) Pennsylvania’s 20 electoral votes, he’d need to win 36 additional EVs from the 45 still unresolved (26 of them in states where Biden currently leads) to reverse the overall outcome. To sum it all up: If he had some ham, he could make a ham sandwich, if he had some bread.

So vague if inflammatory caterwauling about imaginary fraud may be all Team Trump has left before long. And you have to figure Republicans stuck defending the president will be quietly cringing as his claims become more and more ludicrous.

Trump’s Only Credible Legal Strategy Won’t Be Enough