President Donald Trump vowed over a week ago to unleash an imposing barrage of legal challenges to the result of an election that is, and should universally be recognized as, over and done. In a statement last weekend, he vowed that, on Monday, November 7, "Our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated."Well, last Monday has come and gone. Turns out, all Trump s attorneys have delivered is a ridiculous mishmash of lawsuits that run the gamut from weak to entirely meritless to downright frivolous. Trump and his attorneys are humiliating themselves, and they re damaging our democracy in the process.
The reason Trumps election lawsuits are tanking
Tuesday ,17 November 2020
There s no delicate way to put this: Thus far, Trump, his campaign and their surrogates have gotten absolutely pummeled in the courts. One of the great things about our legal system is that it requires actual proof — not tweets, not public statements, not viral videos — but actual verifiable evidence. And the Trump campaign s efforts to, well, trump up evidence of voter fraud have failed spectacularly.
In one case filed in Georgia, the Trump campaign alleged that 53 ballots had been counted even though they had been cast after the deadline. But both of the Trump campaign s witnesses testified they did not actually know when the ballots had been received, and two other witnesses confirmed that the ballots had been received on time. That case was quickly dismissed.
In another case in Michigan, the Trump campaign claimed that certain late-arriving ballots had been counted improperly. Their "evidence" was a Republican election observer who claimed that an unnamed poll worker showed her a Post-it note of unknown provenance alleging improper ballot counting. That s not evidence, that s hearsay piled up on hearsay. That case, too, was quickly tossed out.Last week, the Trump campaign somehow managed to lose or voluntarily drop nine different cases in one day. Indeed, the Trump campaign and its surrogates have even begun to pull back their own lawsuits, giving up on their case in Arizona and dropping their appeal of a loss in Nevada. And, on Monday, voters in four states dropped their lawsuits seeking to contest election results in Georgia, Michigan, Pennsylvania and Wisconsin.
Even the lawyers are jumping ship; multiple firms have now abandoned the Trump campaign s effort to dispute the election results.
The Trump campaign won one minor case in Pennsylvania, and they still might get lucky and win another here or there -- among the many they have scattered across the country. But even if they end up with a few victories, it will likely be to no avail.
Given President-elect Joe Biden s Electoral College margin of 306-232, even if Trump miraculously reversed the outcomes in, say, Pennsylvania (with its 20 electoral votes) and Georgia (16 electoral votes), Biden still wins.
And Biden s margins in those states, and other key swing states, run to the tens of thousands of votes. Trump s lawsuits thus far haven t even come close to proving (or in some cases have not even alleged) voter fraud on anything near that scale.Judges so far have gotten it right. They ve tossed out the preposterously infirm lawsuits nearly as quickly as pro-Trump attorneys have filed them. As a result, our judiciary has rightly prevented the bogus "massive fraud" narrative from taking any further hold than it already has gathered from the wild pronouncements of Trump and his enablers.
It s tempting to have a laugh at the losing string of Trump campaign lawsuits. But those bringing these lawsuits deserve derision for their stubborn, pathetic attempts to conjure massive fraud where no such thing exists. However, they also are doing something more insidious: They are undermining public confidence in our election system and our democratic process.
Now, your questions
Tim (Delaware): Could Republican state legislatures appoint their own slates of presidential electors to vote for President Donald Trump, even if their states voted for Biden?
This won t happen, for both legal and political reasons.
Legally, Article II of the Constitution does grant state legislatures the power to determine the manner of choosing presidential electors. But every state has long had laws on the books assigning presidential electors based on the popular vote of that state (most states assign electors on an all-or-nothing basis; Nebraska and Maine appoint electors based on the popular vote in each congressional district).
While state legislatures could change the manner of appointing their electors, they would need to do so by (1) passing a new law, and (2) doing it before the election for which the new rule would become effective. As a matter of basic fairness and as a legal principle, it would be nearly impossible for a state legislature to change the rules of appointment after the voters have cast their ballots in a given election.
As a political matter, it is very unlikely that state legislatures would even seriously consider appointing a slate of electors, after the election, contrary to their states popular votes. No state legislature of either party has shown any serious inclination to even consider such a precipitous, politically self-destructive move. Don t lose sleep over this one.Gordon (Texas): If the Senate ends up split 50-50, who controls the majority and the agenda?
Republicans currently hold a 50-48 advantage over Democrats for the upcoming Senate session, which will begin in January 2021, with two Georgia runoffs pending. If Democrats win both those Georgia runoffs, the Senate will be split 50-50.
Article I of the Constitution provides that the vice president breaks a tie vote in the Senate: "The Vice President of the United States shall be President of the US Senate, but shall have no vote, unless they be equally divided." (This is, interestingly, the only specific duty of the vice president outlined in the Constitution, other than succeeding to the presidency upon death or resignation of the president).
With Kamala Harris soon to take office as Vice President, the Democrats would then hold the tiebreaker advantage.
Tim (Texas): Are there any legal requirements to become a justice on the Supreme Court?
There are no age, residency or nationality requirements to become a Supreme Court justice, unlike many other of our highest public offices. For example, the US Constitution requires that the president must be at least 35 years old, be a "natural born citizen" of the United States and have 14 years of residency in the country. A US senator must be 30 years old, with nine years of US citizenship and must reside in the state he or she represents. And a US representative must be at least 25 years old, with seven years of citizenship and must reside in the state he or she represents.The Constitution does not even specify that a Supreme Court justice must be a lawyer. Two justices who served in the 1940s and 1950s, James Byrnes and Robert Jackson, studied law but did not hold formal law degrees (though Jackson was awarded a degree the same year he was confirmed to the court).
Three questions to watch
1. Will the Trump campaign get any traction in its ongoing effort to contest election results?
2. Will the incoming Biden administration take legal action to compel the General Services Administration to turn over transition funding?
3. Will we begin to see Trump issue pardons during his final weeks in office?