The fat lady might not be singing yet — but she’s clearing her throat.
The outlook is dim for these last-ditch suits. The fat lady might not be singing yet — but she’s clearing her throat.
T here is a simple way to illustrate what is wrong with President Trump’s fusillade of legal challenges to Joe Biden’s increasingly apparent victory in the 2020 election: Just consider what is at stake in the case that has drawn the most attention. That is the Supreme Court case, in which Republicans are pleading with the justices to rule that Pennsylvania’s highest court unconstitutionally contravened state law by allowing ballots to be received for three days after Election Day.
That matter has riveted the attention of election watchers. It has gotten extensive national media coverage. The Trump campaign has talked it up as crucial. Trump supporters have good reason to believe that the law is on their side and that the president is likely to prevail if the Court agrees to hear the case.
And . . . it’s about 10,000 votes. If you’re keeping score, that’s not close to what Trump needs.
See, the president trails by 55,000 in Pennsylvania. It is anything but clear that all 10,000 late-arriving ballots are Biden votes — a goodly chunk of them could be Trump votes that the president would be knocking out. But even if we suspend disbelief and assume that they’re all Biden votes, the president would still be 45,000 short of flipping the state into his win column.
This is the president’s fatal problem. No matter which battleground state we analyze, there is always a mismatch between the impropriety alleged and the remedy that it could yield. Where Trump is strongest, as in the Supreme Court case, the yield in votes is a relative pittance. Where Trump’s claims are weaker and hotly disputed, the president is asking for mass disfranchisement, which no court is ever going to order.
Comments I made about this state of play in a Fox News interview Friday morning irritated some of my Trump-diehard friends. I was asked whether the president should continue pursuing his legal challenges. Of course, it’s not my place to say what the president should do — 71 million people didn’t vote for me, and Donald Trump is absolutely entitled to exercise his legal rights. So, since I wouldn’t presume to say what the president should do, I confined myself to what I would do — which is acknowledge the reality that the election is lost.
This is not to concede a lack of voting irregularities. There has never been a big election about which such a boast could confidently be made. Some of the allegations of error and misconduct that the Trump campaign has alleged are bound to be true. On the other hand, some have already been found by judges to be wildly overstated — which, naturally, can only undermine the credibility of any valid claims the campaign has.
Nevertheless, “let’s see how it goes” is not a strategy. Before embarking on a campaign, including a litigation campaign, you have to identify the objective and make an assessment of whether or not it is attainable. Here, the objective is to reverse the election result, which the president cannot do unless he can flip not one but three states, one of which must be Pennsylvania.
This is not about equity. It is not about whether there was fraud. It is not about the entirely rational deduction that, because Democrats fight every attempt to shore up election integrity, they are looking for opportunities to cheat, if necessary, at the margins.
This is about math.
Presumptive president-elect Biden is currently winning the electoral vote count by 306 to 232. To get President Trump to the magic number of 270, or to get Biden under it, would require shifting 38 votes. Pennsylvania is only 20, so even if Trump could get it, he’d be 18 short. The Trump campaign appears to think its next best case is Michigan and its 16 electoral votes. The president trails there by 146,000.
I will come shortly to why I don’t believe the president has a realistic chance of flipping either of these states. But first, even if he could, what third state could he flip? There appear to be four candidates: Georgia (16 votes), Wisconsin (ten votes), Arizona (eleven votes) and Nevada (six votes).
In Georgia and Wisconsin, there is scant evidence of impropriety, but the races are tight enough to warrant recounts. Yet, recounts historically may shift a few hundred votes, not thousands. Trump trails by 10,000 in Georgia and 20,000 in Wisconsin. Recounts are not going to change those results.
In Arizona, the evidence of fraud is so scant the Trump campaign dropped its legal case in Maricopa County on Friday. Trump claims had already been rejected multiple times in court, and the state’s Republican attorney general has emphatically stated that there is neither evidence of material fraud nor reason to believe the result will be reversed. In Nevada, evidence of illegal ballots is similarly sparse, the Trump campaign has already lost in state court (where the case was sufficiently weak that the campaign moved to dismiss it), and the duplicative federal case it has filed has no apparent chance of prevailing.
Even assuming Trump could miraculously flip both Pennsylvania and Michigan, it is not obvious what third state he could get. And if he got only Pennsylvania, he’d need two of Georgia, Wisconsin, Arizona, and Nevada. At how many windmills shall we tilt?
Now, let’s go back to Pennsylvania and Michigan. In neither state is the campaign claiming it can show particularized instances of vote fraud. Instead, it is alleging systemic irregularities — i.e., the safeguards assuring vote integrity were so lacking for mail-in ballots in the big-city Democratic strongholds of Philadelphia, Pittsburgh, and Detroit that the mail-in ballots for entire counties must be voided — to the tune of 680,000 votes in Pennsylvania and 1.2 million votes in Michigan.
As I explained in a column earlier this week in connection with the Pennsylvania lawsuit (and the same goes for the Michigan lawsuit), the Trump campaign is relying on the equal-protection-of-law theory derived from Bush v. Gore (2000). The idea is that suspected illegal mail-in voters were privileged in a way citizens who voted legally and in person were not, and that counting the former’s ballots dilutes the latter’s.
Let’s stipulate that the Trump campaign can prove significant instances of impropriety. This, by the way, is a generous assumption. On Friday, Chief Judge Timothy M. Kenny of Michigan’s Third Circuit Court rejected a Republican effort to prevent the certification of votes in Wayne County, which includes Detroit. In so ruling, Judge Kenny found most of the allegations (which also factor into the Trump campaign’s federal lawsuit) to be speculative, based on flawed assumptions, biased, factually incorrect, and/or incredible. Pennsylvania election officials have echoed these critiques in a submission rebutting Trump-campaign allegations in Allegheny and Philadelphia Counties.
The problem is that even if some degree of fraud could be proved, the remedy would have to be commensurate with the illegality. Otherwise, Biden voters would be denied equal protection on the same theory the Trump campaign posits.
If it could be established that procedures in the big cities were so lax that large-scale fraud probably occurred, the Trump campaign would, at most, get an opportunity to scrutinize ballots to show individual instances of fraud or other impropriety. That is, the remedy would be surgical. Courts are not going to crudely erase the hundreds of thousands of votes of entire counties over a comparatively modest showing of impropriety. If a court did that, it would not just be diluting the votes of hundreds of thousands of citizens who voted legally; it would be disenfranchising them. And if, as the Trump campaign maintains (correctly, no doubt), the votes in question are overwhelmingly Biden votes, then the disenfranchisement of lawful Biden voters would, under the Trump campaign’s own legal theory, improperly inflate Trump votes.
The Trump campaign’s federal suit in Michigan elucidates these flaws. The campaign relies on claimed systematic improprieties in Wayne County (the ones Judge Kenny of the state court rejected). Trump, however, seeks to strike the mail-in ballots not only from Wayne but also from Washtenaw and Ingham Counties. Yet, the campaign has little to say about either county. Ingham is barely mentioned, and Washtenaw is faulted for having more registered than eligible voters. The latter is a common situation that could potentially result in illegal voting, but not inevitably so — let alone inevitable tens of thousands of illegal votes.
As explained above, in the unlikely event the federal court completely agreed with the Trump campaign that there were systematic flaws in Wayne County that threatened election integrity, it would not totally wipe out Wayne’s votes; it is certainly not going to void hundreds of thousands of votes in two other counties that are barely involved and that Democrats will plausibly claim were targeted only because knocking out their votes would shift the statewide lead from Biden to Trump.
In any event, even if the Trump campaign could knock out a few thousand votes in Pennsylvania and Michigan, and that’s not close to a sure thing, it is not going to knock out enough to overcome Biden leads of 55,000 and 146,000 votes.
It should go without saying that I am not endorsing fraud or judicial indifference. Quite the opposite. I’ve repeatedly urged that the Supreme Court should decide the Pennsylvania case. For purposes of future elections, the justices should instruct federal and state judges that they lack general supervisory power to rewrite election laws enacted by state legislatures. Allegations of fraud should be investigated — whether through Trump-campaign lawsuits, legislative hearings, or law-enforcement probes — and any offenders should be prosecuted.
Moreover, election practices need to be carefully examined prior to the next election. Rules cannot be changed at or near the time of voting. If mail-in voting is a bad idea (I think it is), and if voter-identification and vote-tabulation procedures should be tightened up (I’m all for that), the time to do that is before an election happens. It was state laws that permitted the procedures under which the 2020 election took place — state laws that the Republicans, right now, are asking the Supreme Court to rule can’t be changed close to an election. It is too late at this point to claim that the rules were too lax, even if they were.
The honest answer to the question I was asked Friday morning is that I personally don’t see a path to victory here. I take no joy in that — I wanted Trump to defeat Biden. Legally, however, I don’t see how the Trump campaign is going to change the result in a single state, much less three states. Again, the president has a right to his legal challenges. The Illuminati never squawk when Democrats pursue theirs — when Hillary Clinton proclaims that, if he appeared to have lost, Joe Biden should not concede to Trump “under any circumstances”; or when Democrats spend years falsely claiming a Republican president’s hold on the office is illegitimate. We are not in a crisis. The Trump legal challenges should be wrapped up in advance of the first week in December, when states must certify their votes.
But if “it ain’t over ‘til the fat lady sings,” then, as they say, that sound you hear is the fat lady clearing her throat.