Electoral College meetings will convene next month in state capitals to formalize President elect-Joe BidenJoe BidenFord to bolster electric vehicle production in multi-billion dollar push Protesters demonstrate outside Manchin's houseboat over opposition to reconciliation package Alabama eyes using pandemic relief funds on prison system MORE’s win. But the fast-approaching Dec. 14 date has done little to deter the Trump campaign from continuing a protracted election-related legal effort that an increasing number of Republicans have grown weary of.
With the transition to the incoming Biden administration now underway, a growing number of GOP members see President TrumpDonald TrumpJan. 6 committee chair says panel will issue a 'good number' of additional subpoenas Overnight Defense & National Security — Presented by AM General — Pentagon officials prepare for grilling Biden nominates head of Africa CDC to lead global AIDS response MORE’s legal challenges and unsubstantiated claims of widespread voter fraud as a futile attempt to throw sand in the gears of the nation’s transfer of power.
The shifting attitude among some Republicans comes after judges have rebuffed numerous lawsuits brought by the campaign and its allies, at times using blistering language to dismiss the litigation.
Experts say the languishing legal campaign — which is no longer actively pushing to overturn the results in three or more states, as it would need to do to surpass Biden’s electoral votes — is less about flipping the election than about fueling a fundraising effort for Trump’s coffers and soothing his battered ego.
“Since then, all that has happened is that the claims have gotten more outlandish, the better lawyers have fled the campaign, and judges of all stripes — federal and state, whether appointed by Democrats or Republicans, including Trump appointees — have administered the formal death rites to this attempt,” said Pildes, a law professor at New York University.
The Trump campaign remains engaged in three lawsuits based in Pennsylvania, including cases pending in the U.S. Court of Appeals for the 3rd Circuit and the U.S. Supreme Court, where the campaign says it hopes to direct even more lawsuits before its effort is through. Allies of Trump are pressing additional lawsuits in other battleground states.
Like with its legal pursuit, the Trump campaign has shown little restraint in its inflammatory rhetoric, which is increasingly at odds with reality. Trump lawyer Rudy GiulianiRudy GiulianiThree Democrats call for investigation into Sidney Powell to move 'swiftly' Fox News bans Rudy Giuliani from appearing: report Alabama official dismisses Lindell claim that 100K votes were flipped from Trump to Biden: 'It's not possible' MORE on Wednesday told an audience in Gettysburg, Pa., which included state GOP lawmakers, that Trump had actually won Virginia — when in fact the state certified Biden’s win a week ago by more than 450,000 votes.
Although the campaign has little success to show in the courts, the flood of post-election litigation is likely a major contributor to the perception among Trump’s supporters that the vote was tainted by widespread fraud. Almost no Trump voters consider Biden the legitimate victor of the presidential election, while 73 percent of his supporters think the incumbent won, according to a CNBC-Change Research poll released this week.
But cracks have begun to emerge. While many top Republicans continue to use clinical language about Trump being within his right to exhaust his legal remedies, there are emerging signs that their patience is wearing thin.
Several Senate Republicans not known as Trump critics — including Lamar AlexanderLamar AlexanderThe Hill's Morning Report - Presented by Alibaba - Democrats return to disappointment on immigration Authorities link ex-Tennessee governor to killing of Jimmy Hoffa associate The Republicans' deep dive into nativism MORE (Tenn.), Bill CassidyBill CassidyThis week: Democrats hit make-or-break moment for Biden GOP warns McConnell won't blink on debt cliff House passes bill to prevent shutdown and suspend debt limit MORE (La.) and Shelley Moore CapitoShelley Wellons Moore CapitoOvernight Energy & Environment — Presented by Climate Power — Senate Democrats ding Biden energy proposal Capito grills EPA nominee on '#ResistCapitalism' tweet GOP senators unveil bill designating Taliban as terrorist organization MORE (W.Va.) — have recently urged Trump and his supporters to begin to accept Biden’s win and facilitate an orderly transition.
“While some irregularities and fraud have been found and should be punished, there is no indication that these are widespread enough to call into question the outcome of the election,” Capito said this week.
“I have been clear that President Trump — like any candidate for office — has the right to request recounts and to raise legal claims before our courts,” she added. “However, at some point, the 2020 election must end.”
In recent days, the key battleground states of Georgia, Michigan, Pennsylvania, Nevada and Minnesota have all certified Biden’s win, effectively dashing any lingering hopes the Trump campaign had to overturn the results there.
“Certification significantly shifts the burden of proof,” said Ned Foley, an election law expert and law professor at Ohio State University. “Post-certification, asking a court to undo the result is a very heavy lift.”
The political ground has shifted under the Trump campaign lawsuits in other ways too, as all but Trump’s most steadfast supporters make clear it is time to move on.
The transition to the incoming Biden administration began Nov. 23 when General Services Administration Administrator Emily Murphy, after a delay, issued a letter to Biden that formally set the process in motion.
Trump has consented to the process despite his refusal to concede to Biden and ongoing baseless claims that the election was “rigged.”
Justin Levitt, an election law expert and professor at Loyola Law School, said that even though legal effort to overturn the election result is meritless, it is likely to continue for the foreseeable future.
“It was dead a few days after the election. It’s been undead since. And it’s remarkably hard to kill the undead for good,” he said of the campaign’s legal effort. “There will probably be some continued action in the courts either until [Senate Majority Leader] Mitch McConnellAddison (Mitch) Mitchell McConnellFord to bolster electric vehicle production in multi-billion dollar push On The Money — GOP blocks spending bill to kick off chaotic week in congress Overnight Health Care — Presented by Alrtia — Booster shots get bipartisan rollout MORE puts his foot down or until the fundraising dries up.”