OP-ED: Trump's election lawsuits are legally hollow

Noah Feldman
Bloomberg Opinion (TNS)
The Supreme Court is seen in Washington, Wednesday, Nov. 4, 2020. The Trump campaign is seeking to intervene in a Pennsylvania case at the Supreme Court that deals with whether ballots received up to three days after the election can be counted. (AP Photo/J. Scott Applewhite)

Legally speaking, President Donald Trump's various election lawsuits amount to nothing.

On Wednesday the Trump campaign announced an array of different legal efforts to fight Joe Biden's apparently impending Electoral College victory.

This included attempts to stop the vote counting in Michigan and Pennsylvania, and a motion to be heard by the Supreme Court in the case about ballots that arrived or will arrive in Pennsylvania after 8 p.m. on Election Day.

The campaign also filed a lawsuit in Georgia claiming a poll worker improperly mixed up absentee ballots, and asked for late-arriving ballots to be segregated.

Although Georgia is close, this isn't the stuff of which election-changing lawsuits are made. (Trump's lawyers also say they will seek a recount in Wisconsin; but that is extremely unlikely to erase Biden's roughly 20,000 vote margin there.)

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Start with the attempts to stop the counting. These are legally vacuous and don't pass the laugh test. Trump's Michigan filing asks the state courts to stop tallying votes, alleging that the state's absentee vote counters are proceeding without the presence of election inspectors and vote "challengers" from each party, as Michigan law requires. The problem with this argument is that, as far as is possible to determine, Michigan is indeed allowing Democratic and Republican inspectors and challengers.

So the Trump campaign is further arguing that the state violated the law because it has not shown the Trump "challengers" the video of the drop-off boxes from which the absentee ballots are being taken. Strange as it sounds, the Trump campaign seems to be arguing that the counting of votes should be stopped because his representatives haven't been able to see video of the drop-off boxes.

Michigan law does seem to say that "ballot containers" should be surveilled by video. But there doesn't seem to be anything in the law requiring the campaigns to see the video of drop-off boxes. In any case, it would make no sense whatever for courts to order the counting to stop as a remedy for any failure to provide required video. The logical thing would be for the court to order the state to provide the video.

It's hard to escape the conclusion that the Trump campaign is desperately trying to stop Michigan from finishing its count. Trump is behind in the Michigan count, so the plan can't be to claim victory on the basis of votes already counted. It must be to escape the potential conclusion that Biden has won the election if he wins Michigan and a handful of other states.

People wanting to be election challengers yell as they look through the windows of the central counting board as police were helping to keep additional challengers from entering due to overcrowding, Wednesday, Nov. 4, 2020, in Detroit. (AP Photo/Carlos Osorio)

Speaking of those other states, in Pennsylvania, the Trump campaign has filed (or said it will file) various challenges.

One was a lawsuit filed on Monday evening challenging the secretary of state's instructions allowing people who made mistakes in their mail-in ballots to correct the errors. This suit may have a better chance of succeeding, given that the instructions came at the last minute.

Another is an attempt to stop the vote counting, apparently using a theory similar to the one the campaign's trying in Michigan. In Pennsylvania, it's not clear that a complaint has actually been filed yet, but there is little reason to expect the logic would be any better than in the Michigan complaint.

Then there's the Supreme Court motion. Trump will, if granted leave to intervene, ask the justices to exclude mail-in ballots that arrived after the polls closed. The Supreme Court will probably allow Trump to intervene, given that this lawsuit predated the election, but that doesn't guarantee they'd rule in favor of Trump.

We know there are four votes — the three liberals plus Chief Justice John Roberts — to reject Trump's claim. Three conservative justices more or less invited this lawsuit and can be expected to support Trump's request. That leaves two swing conservatives, Justices Amy Coney Barrett and Brett Kavanaugh.

It's conceivable albeit outrageous that the conservative majority could throw out these votes, even though they were cast by people who had been previously assured by courts that their votes would be counted. But as bad as that is, it might not guarantee a Trump victory.

Even if the justices go Trump's way, it won't matter unless the election comes down to Pennsylvania and unless those late-arriving ballots provide the margin of victory needed to win the presidency. This nightmare scenario would be Bush v. Gore all over again, and it still can't be excluded. But the scenario is becoming less likely by the moment.

The upshot is that Trump's legal strategy is looking weak. It's getting harder to picture how he could use the courts to stop or reverse vote counting.

That said, Trump pretty clearly isn't going to stop claiming the election was stolen just because he loses in court — and loses in the popular vote and the Electoral College. Maybe the lawsuits are mainly intended as preliminary efforts in what will be a developing strategy to de-legitimize the outcome. We will know soon enough.

— Noah Feldman is a Bloomberg Opinion columnist and host of the podcast "Deep Background." He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President."