Trump Can Try, but the Courts Won’t Decide the
Election
Judges,
like most Americans, will surely see that the winner should be chosen by no one
other than voters.
By Richard H. Pildes
Mr.
Pildes is an author of the casebook “The Law of Democracy: Legal Structure of
the Political Process.”
- Nov. 5, 2020
This is the moment in a close election,
with close states, we knew would arrive. Even before Tuesday, this was already
the most litigated election in history. It was inevitable, then, that tight
margins in potentially decisive states would spawn a flurry of postelection
lawsuits as well.
With delayed outcomes, the Trump
campaign is pursuing legal action in several states (as well
as a recount request in Wisconsin). I had hoped that we could avoid this
situation and get to a final count quickly with simple measures: voting in person, processing absentee ballots
early. But now that we are here, it is better that these battles
over ballots play out in the courts than in the streets.
We have been told, rightly, to be
patient and let election administrators do their job. That same steady calm is
needed now as some of the contest shifts to the courts.
Some of these suits
are best understood as reflecting the Trump campaign’s own disorganization.
Indeed, coming from the campaign that appears behind, they are a sign of Mr.
Trump’s weakness. The bottom line is that the suits filed so far are highly
unlikely to affect the overall outcome of the election.
The law entitles campaigns to pursue recounts, if outcomes
fall within certain margins, even if they are likely to be fruitless. Desperate
campaigns are free to throw Hail Mary legal passes. But in court, claims have
to be proved with facts.
States processed tens of millions of
absentee ballots before Election Day, for example, and the Trump campaign did
little to challenge that process. Only now — in the new Michigan lawsuit, for
example — has the campaign decided to take
legal moves against a process that began, in large counties, 10 hours before
Election Day. Courts are not inclined to direct that counts start over from
scratch. Suits brought this late are self-undermining.
And that’s exactly what the courts have
been signaling. In the last weeks before Election Day, the Trump campaign did
indeed bring a flurry of lawsuits; state and federal courts rejected an
overwhelming majority of them. Already, some post-election Trump campaign
complaints have been dismissed.
None of the recently sprouted suits is
the kind that is likely to lead to thousands of ballots being thrown out.
The case that is most
plausible revives pre-election cases arguing that Pennsylvania acted illegally
in permitting absentee ballots to be received up to three days after Election
Day. But to affect the election’s outcome, the number of ballots involved would
need to be considerably greater than the final margin (not all these votes
would be for one candidate).
That seems unlikely, given how early so
many Biden supporters in Pennsylvania returned their absentee ballots (by
Election Day, Democrats had returned 84 percent of the absentee ballots they
requested, higher than the normal return rate of 80 percent).
But even in the improbable event that
the number of ballots is large enough to determine Pennsylvania’s winner, the
Supreme Court was asked twice before the election to rule that three-day
extended window illegal. The court declined to
stop the extension in advance, in a 4-to-4 vote, and then refused to hear
the case before the election.
The court having led voters to believe
they could mail back their ballots in confidence if they were received up to
three days after the election, it would be stunning for the justices to turn
around now and declare, in essence: “We misled you. Those votes are not valid.”
The court might, for instance, decide that the state court acted beyond its
authority, but still conclude that the ruling applies prospectively, not
retroactively to invalidate ballots already cast.
It is hard to know the true motivation
behind these new lawsuits. They could be all sound and fury, an effort to
appease the president and his troops, demonstrating that the campaign is
fighting to the last dawn. On the other hand, they may be less about their
individual claims, or about winning in court, and more the start of a plan to
attempt to sow confusion, to generate a sense of chaos, to undermine the
perceived integrity of the vote — even to set up later tactics.
My guess is that courts will make quick
work of these new cases. At the time of the 2000 election, only half of
registered voters believed it
“really mattered” which candidate won the election. Today, 83 percent have that
conviction. Few judges are going to believe it is good for the country or the
courts for this election to be decided by anyone other than the voters.
Richard H. Pildes is a
professor at New York University’s law school and an author of the casebook
“The Law of Democracy: Legal Structure of the Political Process.”
