Trump Needs Three Consecutive Hail Mary Passes

The president’s litigation strategy is unlikely to succeed, but it’s doing great harm in the meantime.

An illustration of Donald Trump
Getty / The Atlantic

Despite the clear math showing that Joe Biden has won the election, President Donald Trump has refused to concede. He has directed his legal team to keep on fighting to try to overturn the results of the election, including in a new 105-page federal-court filing in Pennsylvania. These legal maneuvers are unlikely to pay off in the form of a second term for Trump; he would need the equivalent of three consecutive Hail Mary passes to stay in office.

But what Trump and his legal team are doing can nevertheless cause real harm to the country going forward, should millions of people believe Trump’s false statements that Biden won the election through fraud. It is this near certainty, and not the long-shot possibility of Trump staying in office, that is reason for grave concern.

The state of play can be described as follows: Biden appears very likely to win 306 Electoral College votes, 36 more than he needs for the presidency. This is a comfortable lead. Recounts in even the closest states, where the candidates are 10,000 to 20,000 votes apart, are extremely unlikely to change the election results; the most recent Wisconsin recount, in 2016, shifted the result by 571 votes. And nothing in those closest states indicates the kind of systemic failure that could lead to a more dramatic reversal.

The lawsuits filed in Pennsylvania and elsewhere are highly unlikely to go anywhere. The most recent complaint filed in federal court in Pennsylvania amounts to virtually nothing. Its core idea, that the different procedures for voting by mail and voting in person constitute an equal-protection violation, is ludicrous.

First, the differences between mail-in and absentee voting were obvious for months and nothing prevented the Trump campaign from suing earlier over this; a late suit now is barred by a legal doctrine called laches, which says that you cannot simply wait until after an election you don’t win to sue over an election problem you could see beforehand.

Further, having different procedures for mail-in and in-person balloting does not create an equal-protection violation. If this claim succeeds, it would mean that voting was unconstitutional across the entire country. The claim is especially weak when voters had the choice to vote using either system. The other claims in the complaint are mostly retreads of issues that have been rejected legally, factually, or both in other lawsuits. There has been no proof of widespread fraud.

Even if some of the claims were to have merit, a strong argument exists that federal courts should not get involved. The Electoral Count Act, passed after the disputed 1876 presidential election, conceives of a state role, not a federal role, for resolving fights over the election, and federal courts will likely want to let states decide. A federal ruling could endanger the ability of a state to submit its Electoral College votes by the December 8 safe-harbor deadline; Congress cannot challenge Electoral College slates submitted by that date.

More important, this quixotic lawsuit presents no path to an ultimate Trump victory. The Trump campaign has not provided a good reason for a federal court to step in and delay certification. Nor has it provided any evidence showing that there were tens of thousands of ballots cast illegally for Biden or of legal ballots not counted for Trump. That kind of showing should be necessary to get any relief, and likely from a state rather than a federal court. Biden is currently ahead by about 45,000 votes in Pennsylvania, and may well be ahead by 100,000 when all the votes are counted.

And even if Trump somehow overturned the results in Pennsylvania, that would not be enough to flip the results in the Electoral College. In Arizona, where Biden now leads by about 15,000 votes, the Trump campaign has filed a lawsuit that could call at most 200 votes into question. And even overturning Pennsylvania and Arizona is not enough to make up for Biden being 36 votes beyond the Electoral College threshhold.

Lawsuits aside, what about the idea that state legislatures in Republican states could simply appoint a Republican slate of electors for Trump, thereby flipping the Electoral College to him? Is this cause for alarm?

To begin with, even talk of doing so would trigger massive unrest and put legislators under unprecedented pressure. A Republican leader in Pennsylvania’s state Senate has said that the legislature has no further role in choosing electors, though there’s been some troubling talk more recently among Republican legislators to open an inquiry into supposed election irregularities in the state.

Moreover, legislatures would have no legal basis for going against voters’ will. The Constitution does give state legislatures the right to set the manner for choosing presidential electors, but they have already set the manner: the use of popular election to assign Electoral College votes on a winner-take-all basis in every state but Nebraska and Maine. In theory, state legislatures could try to declare under a part of the Electoral Count Act that voters have “failed” to make a choice for president, entitling the legislature to choose electors. But voters have made a choice, and there is no plausible argument that fraud or irregularities infected that choice. For state legislatures to do this, we are out of the realm of legal arguments and into naked power politics, where the choice of the president would get duked out in Congress.

We can keep going down these rabbit holes, and though surely there are some very dark possibilities, none of them is likely. Republicans know this, and they are perhaps just “humoring” Trump by allowing him to believe that he has a path to victory.

This humoring has a tremendous downside. As Bill Kristol wrote, that we are having this discussion at all is itself concerning. And even though the election results do not appear to be in doubt, what Trump and his team are doing now is corrosive to democracy, which depends on the losers accepting results as legitimate. The danger, then, is less about whether Biden takes office in January and more about whether the American people will keep believing that this is a country that can settle its disagreements peacefully and through a legal process.