US presidential election: towards a legal trench warfare

Will the legal actions launched by Donald Trump allow him to slow down or reverse the outcome of the election? Not sure, but everything is likely to be played out in Pennsylvania. Donald Trump keeps denouncing electoral fraud and claiming that the Democrats are trying to “steal” the elections from him. He and his team have launched a whole series of legal actions since Tuesday – a practice he has used and abused throughout his career as a real estate developer – against what they believe to be a multitude of irregularities and various frauds, from Wisconsin to Nevada.

With Joe Biden closer and closer to victory, Donald Trump seems ready to do anything to block his official election. Its strategy is twofold and rather contradictory from a legal point of view. He wants the counting of the ballots to continue in the states where he is lagging behind but stop the counting in the states where he thinks he is leading. He, for example, announced a lawsuit in Nevada where, he claims, thousands of dead and voters who no longer live in the state have voted. In the end, her appeal concerns only a single voter who claims that she did not vote by mail when the authorities say otherwise.

So far, Donald Trump has not been very successful. Admittedly, a judge granted him that the observers during the recount in Philadelphia be placed at a distance of 2 meters instead of 4.5. But on Thursday, judges in Georgia and Michigan dismissed his complaints about the integrity of the process and on Friday he suffered further setbacks. Even if the judges find him right in other appeals, those actions are unlikely to invalidate thousands of ballots and change the outcome of the election. “These are generally small cases, there is not really a major file,” observes Rick Hasen, specialist in electoral laws.

Sow doubt

Many appeals relate to a small number of votes, 53 in Georgia, a hundred in Pennsylvania … In fact, the accusations of fraud serve above all, it seems, to sow doubt in the minds on the legitimacy of the elections and to mobilize the troops. “These lawsuits have no merit,” said Bob Bauer, one of Joe Biden’s lawyers accusing Republicans of “political theater.” “It’s part of a larger disinformation campaign,” he says. Even John Yoo, a lawyer who came to prominence during the George Bush administration for his justification of torture, admitted that there was “nothing fraudulent yet. The problem is that the Republican Party is launching a lot of lawsuits without evidence, ”he said. According to him, by crying wolf, these multiple trials risk turning against Trump. Because if there is a real case of fraud one day, the judges who have already rejected many inane appeals may not take it seriously.

As for the recount of the votes, for the moment, it is only planned in Georgia where President Donald Trump is ahead of Joe Biden by a few thousand votes out of 5 million votes. Republicans say another recount is expected to take place in Wisconsin. Again, the impact should be limited. In 2016, the gap between Donald Trump and Hillary Clinton was very small in Wisconsin. After a recount that lasted two weeks, authorities found 131 more ballots for Trump out of 3 million votes. This year, Joe Biden is leading, for the moment, by 20,000 votes. In twenty years, according to FairVote, a group that calls for electoral reforms, of the 31 electoral recounts that have taken place at the state level, only three have changed the result and it has played out each time on a few hundred votes. .

The judges could determine who the next president is.

Whatever, Donald Trump is threatening other remedies and affirms that the election will be decided by the Supreme Court as in 2000. Except that the situation is quite different for the moment. The appeals are multiple in nature in several states whereas, twenty years ago, it was about a recount of the votes in Florida where only 537 votes separated the two candidates, Al Gore and George W. Bush. For experts, there is little chance that such a situation will happen again this year.

The postal voting puzzle

The only case the Supreme Court has a chance to consider is in Pennsylvania. Republicans accuse the state of having acted illegally by allowing a three-day extension of the deadline to receive bulletins mailed before the evening of November 3. A measure taken because of the pandemic. They are asking the Supreme Court to stop the count. This case raises legitimate constitutional questions about the powers of the local congress against those of the Supreme Court of Pennsylvania which decided to extend the deadline. The United States Supreme Court has twice refused to block the extension. But several conservative judges have indicated they are open to revisiting the matter. On Friday evening, Judge Samuel Alito ordered election officials to keep these ballots separate without asking that they be stopped counting. “If the Court agrees to rule and the presidential election hinges on the results of the vote in Pennsylvania, the judges could determine who the next president is,” notes John Yoo. It is also necessary that the number of ballots arrived after the election is greater than the margin which separates the two candidates.

“With the Court having led voters to believe they could mail their ballot with confidence within three days of the election, it would be astounding if the judges backtracked and said, ‘You’ve been tricked into fault. These ballots are not valid, ”said Richard Pildes, professor of law at New York University. In any case, it is likely that these courtroom battles will continue. These remedies are the equivalent of a legal trench warfare, where one fights voice by voice trying to win enough votes for his candidate and deprive the rival of his to tip the election. It’s hard and long-term work, ”summed up Thomas Dupree, a lawyer who defended George W. Bush in the battle for the recount in Florida.