Trump’s Legal Farce Is Having Tragic Results
There
is nothing funny about the Republican Party’s multipronged attack on voting
rights.
By Richard L. Hasen
Mr.
Hasen is the author of “Election Meltdown:
Dirty Tricks, Distrust and the Threat to American Democracy.”
- Nov. 23, 2020, 5:00 a.m. ET
Even as the campaign lawsuits brought
by President Trump over the 2020 election enter
their death throes, many
people continue to worry that Mr. Trump will find three Republican legislatures
to magically snatch victory from the jaws of defeat. They are concerned that he
will pull off an antidemocratic hat trick through maneuvers like delaying recounts in Wisconsin and blocking certification in Michigan to allow these
legislatures to submit competing slates of electors to Congress. The goal is to
prevent Joe Biden from securing the Electoral College votes he needs on Jan. 6
for Congress to declare him president.
The good news is that there is no real
prospect that Mr. Trump can avoid a reluctant handover of power on Jan. 20. The
bad news is that Mr. Trump’s wildly unsubstantiated claims of a vast voter
fraud conspiracy and the litigation he has brought against voting rights have
done — and will increasingly do — serious damage to our democracy. Our problems
will deepen, in particular, because Mr. Trump’s litigation strategy has led to
the emergence of a voter-hostile jurisprudence in the federal courts. New
judicial doctrines will put more power in the hands of Republican legislatures
to suppress the vote and take voters, state courts and federal courts out of
key backstop roles.
Let’s start on the positive side. A federal district court
opinion issued in Pennsylvania Saturday laid bare both the
dangerousness and vacuousness of Mr. Trump’s litigation strategy. Rudy
Giuliani, acting as one of the president’s lawyers, failed to persuade Judge
Matthew Brann — an Obama-appointed Federalist
Society member and former Republican official — to disenfranchise
nearly seven million Pennsylvania voters and to let the state legislature name
a slate of presidential electors. The court held that the Trump campaign
offered a “Frankenstein’s monster” of a legal theory and that the complaint was
full of nothing more than “strained legal arguments without merit and
speculative accusations, unpled in the operative complaint and unsupported by
evidence.”
Although the
campaign has appealed the case to the Third Circuit, it is
so weak it will get no better reception there or at the Supreme Court. There
are no remaining legal cases that could plausibly overturn the
election results in even one state where Mr. Trump has lost
(much less the three he would need for a different result in the Electoral
College).
Dilatory tactics like delaying certification
or recounts will be rejected by courts or governors, and not even a single
state legislature (much less three) seems eager to incur the wrath of the
American people through a power grab that would violate the rule of law,
trigger massive street protests and call the legislators’ own elections into
question. Most state legislators appropriately defer to the will of their own
voters despite pressure from
the president.
And even if three state legislatures
engaged in broadly antidemocratic action by purporting to appoint their own
slates of electors, federal law favors Electoral College slates sent in by
governors, and we can expect Democratic governors in Michigan, Pennsylvania and
Wisconsin to submit slates reflecting their voters’ choice of Mr. Biden. On top
of that, Democrats will control the House, which will not accept rogue
alternative electors. If Congress stalemates, Mr. Trump is out of office on
Jan. 20 under the Constitution’s 20th Amendment.
All of that is indeed good news, but I
am quite concerned about what comes next. By the time President-elect Biden
takes the oath of office, millions of people will wrongly believe he stole the
election. At least 300 times since the election, Mr. Trump has
gone straight to his followers on social media to declare the election rigged or stolen and to
claim, despite all evidence to the contrary, himself as the real victor. Mr.
Trump’s false claims will delegitimize a Biden presidency among his supporters.
It should go without saying that a democracy requires the losers of an election
to accept the results as legitimate and agree to fight another day; Republican
leaders echoing Mr. Trump’s failure to support a peaceful transition of power
undermine the foundation of our democracy. It’s not only the fact that we have
had to say this, but that we keep having to repeat it, that shows the depths
that we have reached.
Mr. Trump’s litigation strategy also
will make things worse when it comes to voting rights. The common thread in his
campaign’s postelection litigation connecting Trump allegations of people of color illegally voting in Democratic
cities in swing states and corrupted voting machines is a lack of any
evidence to support the claims. Many of the lawsuits have been laughed out of
court for lack of evidence, voluntarily dismissed, or involve so few votes that
they could not plausibly change the outcome. These unsuccessful lawsuits will
nonetheless provide a false narrative to explain how it is that Mr. Biden
declared victory and serve as a predicate for new restrictive voting laws in
Republican states. They already provided a basis for the now-aborted attempt of
Republican canvassing board members in Wayne County, Mich., to reject votes
from Democratic-leaning Detroit, and could be the basis for a similar move by
Republicans when the Michigan state canvassing board meets Monday.
And even as Mr. Trump
has lost most of his postelection lawsuits, he and his allies had a good bit of
success before the election in cases that will stymie voting rights going
forward. Following the lead of the U.S. Supreme Court, federal appeals courts
now routinely say that
federal courts should be deferential when states engage in balancing voting
rights — even during a pandemic — against a state’s interests in election
administration and avoiding fraud, even when states come forward with no evidence
of fraud. Under the so-called “Purcell principle,”
courts increasingly allow states to make voting harder.
They can do this whenever states are able to stall judicial proceedings long
enough that they can claim a voting change comes too close to the election and
will confuse voters and election administrators. Courts have issued other
disturbing opinions, including allowing for age discrimination in
the availability of mail-in ballots only for those older than 60 or 65,
essentially short-circuiting litigation under
the 26th Amendment, which bars discrimination in voting on the basis of age.
The worst appears yet to come. In one
of the lawsuits that remains technically alive at the Supreme Court out of
Pennsylvania, Mr. Trump and his allies have advanced a muscular version of something that’s become
known as the “independent state legislature” doctrine. Taken to its extreme,
the doctrine says that state legislatures have complete authority to set
election rules absent congressional override, and that their power to set
election rules cannot be overcome even by state supreme courts applying
right-to-vote provisions in state constitutions.
That’s the basis for Mr. Trump’s claim in the U.S. Supreme Court that
the Pennsylvania Supreme Court order, requiring the receipt of mail-in ballots
arriving up to three days after Election Day, had to be counted. (This is now a
question for future elections because there are not enough ballots at
stake to affect the 2020 count.) The doctrine also could be potentially
violated by state and local election agencies even when they act under the
Legislature’s authority to administer elections.
In the course of pre-election
proceedings, Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and
Clarence Thomas issued
or signed onto separate opinions endorsing the strong reading of this doctrine.
The newest justice, Amy Coney Barrett, may well agree. And
Chief Justice John Roberts, while not agreeing it was appropriate to apply
this doctrine in these pre-election cases, was the lead dissenter in
a 2015 case out of Arizona advancing a similar theory about broad legislative
power to set the rules for federal elections.
Either in the Pennsylvania case or in
another, the court’s conservative majority could soon embrace a strong version
of the independent state legislature doctrine. This could take state courts out
of their essential role in protecting voting rights. It could potentially
eliminate the ability of voters to use ballot measures to enact nonpartisan
redistricting reform and other measures that apply to federal elections. It
could give conservative courts looking for an excuse a reason to scuttle
voter-protective rules enacted by state election boards.
Together, the Trump-related precedents
mean that neither state nor federal courts are likely to be able to play a
backstop role when Republican state legislatures pass new restrictive voting
laws, and that efforts to get around these state legislative efforts are likely
to fail as well. Although in theory Congress has the power to
override state legislatures with voter-protective legislation for federal
elections, it is hard to see any of that getting through the next Congress even
if Democrats barely grab control by winning the upcoming pair of Senate runoffs
in Georgia.
Mr. Trump has not
admitted it, but he lost the 2020 election. His attack on voting rights and the
legitimacy of our election system, however, will live far beyond his
presidency. At stake is whether this country continues to adhere to the rule of
law and to allow elections to be decided by a majority of voters.
