Trump campaign presses on with US election fight but chances are dimming

Simone McCarthy, South China Morning Post

Posted at Nov 18 2020 12:43 PM

US President Donald Trump has yet to concede the election to Joe Biden, but his chances of contesting the results are dimming, with multiple lawsuits supporting his claims being dismissed or withdrawn in recent days.

The campaign has leaned into what appears to be an eleventh-hour legal strategy to prevent key states from certifying their votes, with a key court hearing on Tuesday in Pennsylvania. It is a strategy that, if successful, could in theory trigger a rare event with the potential to favour Trump.

But the likelihood of such a drastic turn of events – where state legislatures or Congress could get involved in which electoral votes are counted – is slim, according to legal scholars.

Over a week after Joe Biden was projected as the winner on November 8, the Trump campaign has yet to provide credible evidence backing the president’s claims of voter fraud and election rigging. Meanwhile, the integrity of the election process has been resoundingly endorsed by state and federal officials.

“The Trump lawsuits lack facts of any problems, strong legal arguments, or a remedy that would change the results given the large margins in the key states,” said Joshua Douglas, a professor at the University of Kentucky Rosenberg College of Law.

“This election was not close – it just looked that way initially given the order in which some states counted their ballots, with mail-in ballots being counted last and Democratic voters much more likely to vote by mail … let’s not pretend there is any possible merit here,” he said.

Biden beat out Trump by tens of thousands of votes in Pennsylvania and over 100,000 in Michigan, two states where Trump’s campaign was seeking to block vote certification as of Tuesday morning.

In the electoral college, the system which formally selects the president based on the popular votes in each state, Biden captured 290 votes, with 270 needed to win. Some networks have projected Biden the winner in Georgia, which is recounting its votes, boosting him to 306. Trump trails at 232.

Biden’s electoral lead and the size of his margins in multiple states means the “door is pretty shut” on any path to success on litigation over recounts or contested tranches of ballots, according to Dan Urman, director of the law and public policy minor at Northeastern University.

“One of the reasons is simple math,” he said.

The suits that focus on states certifying their votes involve claims that mail-in ballot practices impacted voter rights in Pennsylvania, and that poll observers were obstructed from viewing the counting of ballots in Michigan.

Stopping certification would mean interrupting the process where states confirm their popular vote results and the names of the electors who will cast votes for the winning candidate.

In every state besides Maine and Nebraska, the party of the candidate who wins the popular vote will command all of the state’s designated electoral votes. The party’s chosen electors submit their votes next month to be counted by Congress on January 6.

States have different deadlines for certifying their vote, but as long as all of them have settled any controversies by what is known as a “safe harbour” deadline then those results are considered conclusive. This year that falls on December 8.

Legal experts say it is unlikely Trump’s bid to stop certification will be successful.

“It would take very serious allegations before a judge would be willing to issue an order to stop certification of the results,” said Robert Tsai, a professor at Boston University’s School of Law.

In theory, if a certification process was stopped by a judge, it could “create enough chaos” that state legislators try to intervene in identifying the state’s electors, according to Tsai.

That could mean a Republican-controlled legislature could play a role in what votes are cast in the electoral college.

But state legislators stepping into such a situation could “risk overthrowing the preference of their constituents”, Tsai said. Republican leaders in key states have already said they are not willing to go down this route.

Kermit Roosevelt, a professor at the University of Pennsylvania’s Carey Law School, said votes from states that missed the safe harbour deadline could be challenged in Congress.

But a legal bid to stop or delay certification would require “substantial evidence of fraud that can’t be quantified – meaning that there is enough fraud to affect the election, but the relevant ballots cannot be identified and excluded from the count”, according to Roosevelt.

“It does not seem that [the Trump campaign] have anywhere near the evidence required to set aside an election,” he said.

Additional reporting by Associated Press