So here we are: it’s two weeks since the election, the votes have been counted (and in one state recounted), every news outlet of significance has called the election for President-Elect Biden and Vice President-Elect Harris, national leaders around the world have extended their congratulations, and the Democrats are even now announcing their picks for key White House posts. We’re all moving on to what happens next.
Well, not all of us. Trump – and those closest in his orbit – have persistently refused to concede what everyone already knows, he’s made an obscure landscaping firm in Pennsylvania world-famous (and frankly hilarious) and his campaign is seemingly launching a new lawsuit every few hours. I don’t even know how many at this point; twenty-eight? thirty? He’s sued about everything from improperly-distributed Sharpie pens, to allegedly deceased voters, to how many feet away from vote-counters his observers were allowed to stand (in a frickin pandemic), to what date late-arriving postal ballots were still allowed to be counted, to – in one notable case – not actually having any specific complaint to bring, but asking for a delay while they looked for one. And his lawsuits are getting knocked down pretty much as fast as he files them, but he keeps going.
So what gives? Is he actually trying to win the election by lawsuit? And… you know… is that even possible?
The short answers are: yes, that is exactly what he is trying to do; it’s what the press are generously calling his “legal strategy.” And… sort of? I mean, it’s not impossible, in the way that it’s not impossible, technically, that 2021 is the year I finally start dating Kate Winslet. It doesn’t actually break the laws of physics. But that doesn’t make it particularly plausible.
Let’s break this down.
The Presidential Election: A Primer
The thing is, the system by which the United States, every four years, elects their president is fantastically baroque, to the extent that calling it ‘democratic’ starts to strain the definition of the word (sorry, American friends, but I’m sure this doesn’t come as a shock). This is largely a product of the storied and exciting history of the country’s founding, which involved a great deal of careful negotiation between thirteen newly-independent colonies none of which wanted to cede too much influence to any of the others (and yes, the slave trade played a part in that). But it’s also, depressingly, at least partly by design – the electoral process having been a political football for most of America’s 244 years.
For starters, it isn’t one national election; it’s fifty state elections. Federal law stipulates that an election take place, and on what date; but the individual state governments take over from there, determining who gets to vote (some nine states permanently disenfranchise some or all convicted felons); when and how you have to register (including whether you can register on the day); whether you can vote early, or by post, and whether postal ballots posted before election day can be accepted if they arrive after (and how long after); how you verify your identity; where you can vote; where and when votes are counted; who gets to observe the count and under what conditions; whether and when recounts may occur; when and how challenges may be mounted and resolved and how the result is verified.
As you can imagine, this makes it all something of a minefield, not improved in any way by the fact that all of this is in a more-or-less constant state of flux. These rules are tweaked, altered or wholly upended from election to election by state legislation, citizen-initiated referendums, gubernatorial orders and court rulings; and inevitably, the confusion arising from this endless jockeying leads to challenges and counter-challenges afterwards (more on this later).
But we’re not done! Just because you’ve had the election, doesn’t mean the election has actually happened. Each state now needs to “certify” the results, confirming that they happened, that any challenges and recounts have been resolved and that everyone is satisfied. In most states, this is done by the Governor; in some, by the state’s Secretary of State. In a couple, there are other, weirder arrangements (like Michigan, where every county has its own special four-person committee – two Republicans, two Democrats – who have to certify the individual county, and then the state has an overall four-person committee to certify the collated results).
Each state has its own deadline for that: in Georgia, for instance, it has to be done by this Friday; in Pennsylvania by next Monday; in Michigan, the state board meets starting Monday (to give the counties time to certify), with a deadline of the 13th December to resolve any problems.
Once each state has certified the result, they appoint their electors. This is the most baffling part of the whole process, but almost certainly the one you’ve head most about, so I won’t go into it at any length. In short:
- Each state is “apportioned” a number of seats in the electoral college by federal law, equal to their number of Senators plus their number of Representatives.
- Each presidential candidate’s party appoints volunteers in each state who commit in advance to voting for them in the college.
- Most states assign all their seats in the college on a winner-takes-all basis (Maine and Nebraska each assign two electors to the overall winner and the remaining seats by Congressional district).
- The volunteers appointed by the winning candidate are thus formally invested as electors.
- On the 14th December, the electoral college meets in DC and votes for their presidential candidate of choice, needing an absolute majority of 270 to win.
And only then has the election actually finally officially happened, and the new President-Elect been chosen.
With me so far?
The “Legal Strategy”
So where do the courts come in? How do you sue to win an election?
Well, for starters, you don’t sue to win the election. You don’t even sue to win in a state. You sue over individual votes.
You sue because votes were accepted too late, or too early; you sue because voters’ identities weren’t properly verified; you sue because an official didn’t do the job in a suitably impartial way; because machines didn’t work right; because military ballots weren’t given long enough to reach the US from overseas postings; because a polling station in a tent doesn’t count as a “structure” per the law; for whatever reason, really. Because the rules – changeable and capricious as they are – weren’t followed right. Or because they were followed, but the other guy’s saying they weren’t. You sue to have a recount, or to not have a recount, or to stop having a recount.
You sue, in the end, to set aside a stack of votes and say: these weren’t legitimate – or to point to a stack that were thus set aside and argue they were.
(This whole mentality seems utterly alien in Britain, where the counters go to extraordinary lengths to include votes, puzzling in the early hours over ballots marked with drawings of penises, or with the phrase “not wank” written in the relevant box. But each country to their own, I suppose.)
And then, if the result is close enough, and the excluded or included votes make the difference, the outcome for a state can change – and if the balance of seats in the electoral college is close enough, the whole country can change, as happened in the 2000 election (maybe; analysts are still picking over the bones of the Florida count, years later).
So is this what Trump is doing? Is the election close enough he can change the outcome?
Well… no, not realistically. Biden looks set to fill 306 seats out of 538 in the electoral college on December 14th. To deny him the win, Trump has to flip at least 37 seats (giving a tie that, under an even more convoluted rule that I don’t have the heart to explain, would end up going to Trump). He’s not about to flip California or Illinois (which Biden won by millions) and he already has Texas and Florida, so to change that many seats he has to change the results in at least three states, including Pennsylvania.
Even then, all the closest states have margins in the thousands or tens of thousands, and most of these law suits relate to hundreds of ballots. One of them (still unresolved, I think, relating to whether voters in different counties in Georgia received different degrees of help with “curing” improperly verified ballots) is estimated to affect 96 votes. Of Trump’s two wins to date, one threw out ten thousand ballots in Pennsylvania (where Biden’s margin is over 70,000) and one had no effect at all.
And that’s it. Two wins, to twenty-four losses.
Trump’s lawyers have come to court with no evidence, no witnesses and in one case with no actual complaint (the judge was, you can imagine, terribly impressed). One suit hinged on a scribbled PostIt note one of the Trump campaign said a vote counter had handed him before running away. One of them included 500 sworn affidavits by voters who said their votes hadn’t been counted, the first half-dozen of whom when questioned explained that they didn’t actually know whether their votes had been counted or not, they just sort of had a feeling. Two law firms have pulled out of a combined six trials, effectively bringing them to an early close.
(Important note here: lawyers don’t quit cases they know they’re going to lose. Losing’s part of the job, and any lawyer knows that prospective future clients are at least as impressed by loyalty and tenacity as they are by success. Lawyers do quit cases when their clients ask them to lie; they have a duty to the court, and don’t want to be disbarred. Read that how you will.)
The certification deadlines are looming; Trump has no evidence, no witnesses and no argument. The odds of him securing the wins he needs in enough states to make a difference before it’s too late are so slight as to be invisible. But he’s still at it, still filing, still demanding recounts. Why?
Well, partly because he’s a malignant narcissist who knows that as soon as he loses the protections of the presidency he’s going to jail. It’s an existential threat to him – if he doesn’t win, his life is essentially over.
But also, because it’s not actually the votes he’s after.
The Actual Strategy: Delay and Confound
The key thing about all these lawsuits is injunctive relief. In brief: “relief” is a catch-all term in civil law for “the thing the judge will do if you win,” including award cash damages, demanding the return of property, enforcement of a contract etc. The ultimate relief these suits are asking for, of course, is to throw out votes.
Injunctive relief is a request for a temporary ruling, to stop the defendant doing something until the larger case is settled: if I had a dispute with a neighbour over the ownership of a tree, for instance, I might seek an injunction stopping them from cutting it down until we establish whether they’re allowed to. And in each of Trump’s cases, his lawyers are asking for the same thing: time. To stop counting while the matter of observers is settled. To stop counting while we argue about Sharpies. To stop recounting while we ask about signature verification. It’s why they’ve demanded recounts, and then asked to stop the recounts – it’s not senseless; wasting time is the point. Shit, now that most of the counts are settled, they’re just plain asking to stop certification.
Why? Those deadlines I mentioned. The law says each state must certify by a given date; so what happens in the event that date is reached, and by court order the certification can’t be given? What happens if we get all the way to the 14th December and certification is still wrapped up in the courts? It’s not 100% clear. Do the governors (Democrat, in most of the states under debate) just go ahead and appoint electors? Do the state legislatures (Republican majorities, in most cases) get a go? Could they try anyway? Both? Neither? This is where the legal strategy really heats up.
A quick digression into appellate law: you can’t just appeal any decision you don’t like. Any court ruling depends on a) establishing the facts of the matter, and b) determining how the law applies. You can only really appeal the latter – the higher court will almost always accept the facts as found by the lower court and commit itself to interpreting the law – and most of these cases so far have fallen on the former, so any requests for appeal have so far been ignored. Everyone’s got very excited about Trump having a 6-3 majority of the Supreme Court, but the Supreme Court can only rule on a case that rises to it – if an appeals court further down the chain refuses to even hear a case, it can’t rise higher; and most of these cases have to go through two or three appeals to get there.
But this? A state that must certify according to its constitution, but can’t according to a court order? That’s unquestionably a constitutional matter. That’s Supreme Court territory right there. They might rule that the state must split its electors between the two main parties; they might rule that it must send two full slates of electors. Heck, they might rule that it can’t send any electors at all, although that’s unlikely.
However it goes, to get there, Trump’s team don’t actually have to win these cases; just draw them out long enough.
The Longest Damn Odds
But can they do it? Unlikely. They still have to get their injunctions, and in every case so far they’ve been told: they don’t actually have a good argument for doing so. No evidence, no witnesses, no valid complaints; and even if they had all of those things, there’s no rationale for stopping the electoral process unless they absolutely have to. Injunctional relief isn’t automatic: a judge has to consider whether the relief being asked for is lawful, what outcome best maintains the status quo until the case is resolved, whether the effects of the injunction would be later reversible if need be, that sort of thing; and as it stands, either delaying certification past the deadline or allowing certification to go ahead would have significant irreversible effects. Thus it is the court’s duty to resolve every dispute in as timely a manner as possible exactly so the deadlines aren’t missed and the question is moot – and so far none of these cases has taken very long to resolve.
In the end, they’re unlikely to get even one state to miss their deadline, much less the three or more they’d need. (Or many more – it’s unlikely the Supreme Court would just plum throw a disputed state to Trump; so, assuming they do something weird like split or double up the seats in the affected states as described, Trump pretty much has to do this in all six battleground states.)
So there it is. The “legal strategy” is ultimately questionably legal, and not terribly strategic. And it is, unless a whole shitheap of extremely unlikely events converge, going to fail. That’s not necessarily the whole picture – he’s also trying straight-up fraud, blackmail, threats, public incitement, whatever he can throw it – but this part, at least, is going to fail.
But fuck me, it’s going to be a tedious few weeks until it does.