In the days leading up to the election, President Trump made clear that he expected the Supreme Court to deliver him a victory. “I’m counting on them to look at the ballots, definitely,” he said at one debate with Joe Biden. Just before the election he told a crowd: “If we win on Tuesday, or, thank you very much, Supreme Court, shortly thereafter ... "
But his efforts to persuade the courts to do for him what the voters wouldn’t are not going well.
Trump’s command on Thursday morning — “STOP THE COUNT!” — is not the cry of someone who knows he’s winning. It’s also particularly ironic: If all vote-counting were stopped where it is now, Biden would have 270 electoral votes and be declared the victor.
So Trump is filing a grab-bag with lawsuits, with almost pathetically thin rationales to reverse what appear to be results shaping up in Biden’s favor:
Pennsylvania. The Trump campaign has filed multiple lawsuits alleging that vote-counting should be stopped for numerous reasons. One is that its representatives in Philadelphia couldn’t see the writing on mail ballots being processed. Another is that the state Supreme Court should not have ordered the acceptance of ballots postmarked by Election Day that arrive up to three days later. A third objection is to instructions given to voters for “curing” mailed votes that had been temporarily disqualified.
Trump representatives did get a court order allowing them to stand six feet away from election workers counting votes rather than the previous 20 feet, which they called an “incredible legal victory.”
Michigan. The campaign sued to stop the counting because it said it had not been granted proper access to oversee the processing of mail ballots.
Georgia. The campaign filed a suit alleging that mail ballots that had arrived too late were being mixed in with ballots that had arrived on time, and asked that the counting be halted. Trump representatives claim that one of their poll watchers saw 53 late ballots mixed in with others.
Nevada. The campaign announced its intention to file a lawsuit claiming that dead people have voted. We do not know for whom these dead people might have cast their ballots.
The problem for Trump is that none of these suits amounts to much, even if any were to succeed, which most of them probably won’t — or, as with the six-foot case, thearguments might prevail but do nothing to change the results.
As election law expert Rick Hasen wrote on Thursday morning, “These lawsuits are tinkering on the edges claiming potentially minor infractions; nothing which would reverse any electoral college win for Biden.”
This is the core of Trump’s challenge: The problems he claims are occurring are too small, and the deficit that is taking shape for him right now is too large.
Which may be why the Biden campaign is sounding extremely confident. On a conference call Thursday morning, his representatives described the efforts as a joke.
“These lawsuits don’t have to have merit,” said Biden campaign lawyer Robert Bauer, but are just a vehicle to make groundless accusations of fraud. “This is part of a broader misinformation campaign,” he said, one that might get Trump supporters riled up but stands little chance of making headway in the courts.
What Trump had originally hoped for was a repeat of Bush v. Gore in 2000, in which the Supreme Court intervened to essentially deliver the White House to George W. Bush. But that case was dramatically different than what Trump faces now.
That situation involved a single state in which a tiny number of votes moving one way or the other would decide the outcome (Bush was eventually declared the winner in Florida by 537 votes). Bush benefited from the fact that Florida’s secretary of state was also his state campaign co-chair, and she had declared him to be the winner; recounts were at issue, and whether they should proceed. But this outcome is unlikely to come down to one state.
Meanwhile, all the bleating by Trump and his supporters about “fraud” and the election being “stolen” from him make it even less likely that the Supreme Court would be eager to intervene on his behalf. The justices want to appear to be grounding their decisions in the law and the Constitution. The loonier Trump’s public rhetoric and the more preposterous his legal claims, the more difficult it would become for them to give him what he wants.
And it might be literally impossible for them to do so. If he arrives at the Supreme Court with some claim that could disqualify 20,000 votes in a state where he’s trailing by 50,000, it wouldn’t do him any good, even if the justices were to give him the ruling he’s seeking.
All of which is to say that Trump getting the courts to give him the victory he was deprived of at the ballot box is looking less and less likely with each passing hour. As of now he still has a chance to win, but if he does it’ll have to be by actually winning.