US elections: how likely is Trump to win his voting law suits?
With the race for the presidency still too close to call, but with Joe Biden looking favourite, it seems the courts may have a big say in the final decison.
It's day two after the polls closed and, possibly unsurprisingly, the result of the US presidential election is still unclear. That said, much of what we're seeing in the latest counts, mainly from postal votes, is edging Joe Biden ever closer to the White House. But rather than the counts being decisive, it may turn out to be the courts.
Trump's legal action to hold onto the US presidency
President Donald Trump called in his lawyers to shore up his dimming re-election prospects, but legal experts said the flurry of lawsuits had little chance of changing the outcome but might cast doubt on the process. As Trump's paths to victory narrowed, his campaign on Thursday was ramping up legal challenges and said it was planning to file its latest case in Nevada.
On Wednesday, the campaign sued in Michigan, Pennsylvania and Georgia and asked to join a pending case at the US Supreme Court. Experts said the litigation serves to drag out the vote count and postpone major media from declaring Biden the victor, which would have dire political implications for Trump.
“The current legal maneuvering is mainly a way for the Trump campaign to try to extend the ball game in the long-shot hope that some serious anomaly will emerge,” said Robert Yablon, a professor at the University of Wisconsin-Madison Law School.
“As of now, we haven't seen any indication of systematic irregularities in the vote count.”
Trump campaign manager Bill Stepien said in a statement Wednesday the lawsuits were aimed at ensuring legal votes were counted.
“The lawsuits are meritless,” said Bob Bauer, who is part of Biden's legal team. “They’re intended to give the Trump campaign the opportunity to argue the vote count should stop. It is not going to stop.”
Ultimately, for the lawsuits to have an impact, the race would have to hang on the outcome of one or two states separated by a few thousand votes, according to experts. In Michigan and Pennsylvania, Trump asked courts to temporarily halt the vote counts because the campaign's observers were allegedly denied access to the counting process. The Michigan case was dismissed on Thursday but a Pennsylvania court ordered that Trump campaign observers be granted better access to counting process in Philadelphia.
At the Supreme Court, the campaign is seeking to invalidate mail-in votes in Pennsylvania that are postmarked by Election Day but arrive by the end of Friday. In Georgia, the Trump campaign asked a judge to require Chatham County to separate late-arriving ballots to ensure they were not counted, but the case was dismissed on Thursday.
“There is no consistent strategy there,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. She said the campaign was 'throwing theories at a wall to see if anything sticks for long enough to muck up the waters.'
Trump case not like Bush vs Gore 2000
Edward Foley, who specialises in election law at the Moritz College of Law, said the cases might have merit but only affected a small number of ballots and procedural issues.
“But merit in that sense is very different from having the kind of consequence that Bush v. Gore did in 2000,” said Foley.
In that case, the Supreme Court reversed a ruling by Florida's top court that had ordered a manual recount and prompted Democrat Al Gore to concede the election to Republican George W. Bush. The 2000 election improbably close, with a margin of 537 votes in Florida deciding the outcome.
The campaign is still challenging late arriving mail-in ballots in Pennsylvania, which according to media reports numbered in the hundreds so far, likely too few to have a meaningful impact. In addition, it appears increasingly likely Biden can win the race even if he loses the state.
We're not likely to be seeing a concession like this one from John McCain any time soon (or at all).
Republicans aim to delegitimise the vote
Danielle Lang, who advocates for voting rights at Campaign Legal Center, said Trump has a long history of attempting to whip up mistrust in our electoral system.
“Allegations of 'irregularities' - backed up by lawsuits, even frivolous ones - could potentially serve that narrative,” she said.
Experts said the lawsuits and claims of fraud might be aimed at softening the sting of being bounced from office by calling the process into question.
“The litigation looks more like an effort to allow Trump to continue rhetorically attempting to delegitimise an electoral loss,” said Joshua Geltzer, a professor at Georgetown Law's Institute for Constitutional Advocacy & Protection.