Editor’s Note: For another viewpoint, see Counterpoint: Clearest Election Lesson — Passivity Is a Bad Political Strategy
During the 2016 presidential campaign, then-candidate Donald Trump acknowledged that litigation was a “tactic” that had proven “successful” for him and his businesses over the years.
A contemporary review of Trump’s legal filings concluded that before entering the White House, the president often turned to the courts “to distance himself from failures and to place responsibility on others.”
Now after most media outlets have called the 2020 race for former Joe Biden, the president is using the same litigation playbook that has served him well in the past. His legal team has filed a slew of lawsuits across the country, alleging a number of dubious allegations under the guise that the president did not lose re-election — fairly, at least.
But unlike the days of suing casino patrons and distancing himself from poor investments, Trump’s postelection suits have not served him well, and the current spree of litigation has made clear that judges are not eager to have their courtrooms contribute to political PR campaigns.
The Trump campaign’s legal bender has focused on some of the tightest state races, including Arizona, Georgia, Michigan and Pennsylvania. Many of these legal disputes, though, would do little to change the ultimate result.
In Arizona, for example, the Trump campaign alleged that a number of “overvotes” — instances where a voter selects more candidates than permitted — could “prove determinative of the outcome of the election.” Days later, though, the campaign dropped the case, acknowledging the state’s 191 potential “overvotes” could not overcome Biden’s 10,000 vote lead.
In other states, the campaign’s legal claims have been met with raised judicial eyebrows. Two days after the election, attorneys for the Trump campaign alleged that observers were barred from Pennsylvania ballot counters, violating state law. But when Judge Paul Diamond — nominated by President George W. Bush — asked how many Republican observers were in the room, the president’s attorney conceded that it was “a nonzero number.”
“I’m sorry, then what’s your problem?” the judge replied. The suit was later dismissed.
On the same day in Michigan, the campaign alleged ballot-counting misconduct in Detroit. In a lawsuit filed in state court, attorneys submitted an affidavit from one poll watcher who alleged she was told other poll watchers were instructed to improperly change ballot dates.
A sticky note saying “entered receive date as 11/2/20 on 11/4/20” was submitted as supporting evidence. After skeptical questioning by Judge Cynthia Stephens during a court hearing, she later wrote an opinion concluding that the affidavit was inadmissible hearsay, and the sticky note was “vague and equivocal” evidence of any wrongdoing.
Back in Pennsylvania, the 3rd Circuit Court of Appeals last week held that a group of plaintiffs — four registered voters and one Republican congressional candidate — did not have standing to challenge the constitutionality of counting late-arriving ballots.
Writing for the court, President George W. Bush nominee Judge D. Brooks Smith explained that the decision was reached in consideration of the “proposition indisputable in our democratic process: that the lawfully cast vote of every citizen must count.”
Unfortunately, the campaign’s playbook is fairly transparent. Despite a number of legal setbacks, the president’s team seems to believe they have a judicial ace up their sleeve. As one of Trump’s legal advisers recently told Fox Business, “We’re waiting for the United States Supreme Court — of which the president has nominated three justices — to step in and do something.”
Despite the Trump campaign’s wishful thinking, do not expect a Bush v. Gore redux. Unlike the 2000 campaign, where about 500 votes separated George W. Bush and Al Gore in Florida, the president is still behind by tens of thousands of votes in several contested states.
Moreover, observers should not subscribe to the same political cynicism as Trump’s legal team. There are numerous examples of conservative justices — including those nominated by the president — ruling against him or his administration.
And as election cases across the country continue to get filed and inevitably be dismissed or withdrawn, observers should not expect the president’s flailing legal theories to get special consideration this time around.
As we step back and consider the political lessons of this election, do not forget the courts. When pressed the most, the courts — across geography and ideology — allowed voters, rather than judges, to decide our election.