When the major media outlets announced that President-elect Joe BidenJoe BidenHouse Democrat threatens to vote against party's spending bill if HBCUs don't get more federal aid Overnight Defense & National Security — The Pentagon's deadly mistake Haitians stuck in Texas extend Biden's immigration woes MORE had won the White House on Saturday, cars honked and people cheered in Democratic-leaning cities and neighborhoods across America, but President TrumpDonald TrumpOvernight Defense & National Security — The Pentagon's deadly mistake Overnight Energy & Environment — Presented by Climate Power — Interior returns BLM HQ to Washington France pulls ambassadors to US, Australia in protest of submarine deal MORE still refused to acknowledge defeat. Commentators have criticized the president for delegitimizing the electoral system by declaring victory before the votes were counted and accusing his opponents of fraud without providing evidence to back it up.
But the president hasn’t called out the troops or private militias. To the contrary, he has called on the courts to vindicate his claims. Former U.S. attorneys have denounced the lawsuits as irresponsible. While his grievances may turn out to be baseless, they represent American democracy at its best.
For centuries, we have asked people who are unhappy with their fellow citizens or government agencies and institutions to bring their claims to court, where laws of evidence and ethical rules govern the proceedings. President Trump has not broken with these traditions; he has honored them. As long as his claims are not entirely frivolous from a factual or legal perspective, he may direct his lawyers to present and zealously advocate his claims in court.
It is true that President Trump has publicly questioned the integrity of the election, making baseless accusations that are troubling and destabilizing. Other politicians have echoed his tweets. Trump’s followers may be less likely to abide by the results of the election because of these irresponsible comments. But by indicating his willingness to go to court, rather than pursue his objection through nonlegal means, the president tempers his cynical message with a traditional response that affirms rather than undermines American institutions.
So far, it seems the courts are doing their job. When the president went to federal court to claim that Pennsylvania should stop counting ballots as long as Republican observers were excluded, the judge asked the president’s lawyer “as a member of the bar of this court” whether any Republicans were present as ballots were counted. The lawyer responded, “There is a non-zero number of people in the room.” Lawyers, unlike politicians, are not allowed to lie, and so Trump’s lawyer was constrained, if only grudgingly, to acknowledge that Republicans had not been entirely excluded. The judge denied the petition but asked the parties to work out an agreement about how many people could observe the count and how close they ought to be.
In a different case, Trump tried to shut down ballot-counting in Michigan because of alleged voter fraud. The state court judge noted that the president’s lawyers had no direct evidence of fraud. In a ruling that reads like a law school evidence class, the judge explained that a statement by an unnamed individual to a poll watcher about what other poll watchers had said was inadmissible hearsay. Other lower-court judges have similarly responded skeptically as Republican lawyers failed to back up claims of widespread voter fraud. But in all cases, judges followed the procedural rules and applied the law, by all appearances rendering impartial justice.
And then, of course, there are the numerous petitions to the Supreme Court. The Pennsylvania GOP petitioned the Supreme Court to keep the ballots that arrived after Election Day separate from the others. Justice Samuel AlitoSamuel AlitoThe Hill's Morning Report - Presented by AT&T - Supreme Court lets Texas abortion law stand Biden rips 'extreme' new Texas abortion law Six-week abortion ban goes into effect in Texas MORE granted the request to segregate the ballots but denied a related request to halt the counting. Republicans had filed an earlier petition, before the election, asking the court to invalidate a rule allowing the state to count ballots that were received up to three days after the election if they were postmarked on time. While this case is still pending, it likely will turn out to be irrelevant; Biden is on track to win enough electoral votes without those of Pennsylvania and he leads in Pennsylvania by a margin that likely will exceed the challenged ballots.
Citing an anonymous source, a reporter tweeted that the entire legal strategy is designed so the president can save face by claiming that the election was rigged. But if this is his plan, it’s likely to backfire. The legal proceedings will lend legitimacy to Biden’s victory, rather than support for a contrary narrative. Why not let him try? Of course, Trump can always attempt to undermine the legitimacy of the courts after the fact, but this would be an uphill battle, particularly given how many cases and courts are likely to be involved. And in the end, the election would look more legitimate and American institutions would emerge intact, if not stronger.
President Trump has been accused of disrespecting the institutions of democracy in many ways, and perhaps this is part of an attempt to do the same, but he and his allies do appear to be using the courts in a traditional way. Judges, rules of evidence, and ethics rules governing lawyers who appear before the courts are working to ensure that the process is fair. Of course, it remains to be seen whether President Trump and his supporters will respect the results. We should pause nonetheless to note that it’s a good sign that they chose to use this all-American method of contesting the election rather than another, less democratic way.
Rebecca Roiphe is the Trustee Professor of Law at New York Law School. She chairs the Institute for Professional Ethics and is co-director of the Center for Criminal Justice at NYLS. Follow her on Twitter @rroiphe.
Bruce A. Green is the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics.