Can President Trump win his election challenges in court?

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Lawyers on cable news are debating whether President Trump can reverse his electoral fortunes in court. Rather than reasonable legal analyses from experts, we are hearing mostly wishful thinking from partisans. Those who want Trump to win tell the public that he may win. Those who want him to lose assure the public that he stands no chance in court.

The great Justice Oliver Wendell Holmes defined the role of lawyers as predicting, in fact, what the courts will decide. So here is my objective and independent prediction as to how the courts will likely resolve the number of challenges brought by Trump and his lawyers.

He could win his case in Pennsylvania about ballots mailed before the end of the election but received over the next three days. Justice Samuel Alito, who oversees the federal circuit that includes Pennsylvania, has signaled Supreme Court interest in that issue by ordering all of these ballots to be counted separately then segregated. The Pennsylvania secretary of state was doing this, but the order from Alito made clear that there are at least some others who could be ready to discount those votes.

Article Two provides that state legislatures determine rules for selecting members of the Electoral College. But it was the Pennsylvania high court, not the legislature, that extended time for receiving and counting mailed ballots by three days. It may have been a sensible decision in light of the coronavirus and problems with delivery. According to lawyers for Trump, the state high court lacked the authority to change the rules that mailed ballots have to be received before the end of the election.

Twenty years ago, in the Supreme Court decision in George Bush versus Al Gore, the majority voted along strictly partisan lines to stop the count ordered by the Florida high court. That decision had been based in part on Article Two. It is likely, therefore, that the even more partisan current Supreme Court might well side with Trump over this issue.

The issue remains whether a decision in favor of Trump would alter the outcome for Pennsylvania. If Joe Biden has won the state by a margin in excess of the challenged votes, then a victory for Trump on Article Two grounds is pointless, as Biden would still carry the state. If the Supreme Court is uncertain whether a decision to discount the challenged votes would change the outcome, it could decline to intervene. There will be cases in Michigan, Nevada, Arizona, Georgia, and perhaps others. Such lawsuits will be even more difficult for Trump and his team.

The lawsuit in Pennsylvania is a “wholesale” challenge to a large number of votes counted in violation of state legislation. That lawsuit is based on the matter of constitutional law, so it does not need evidence or a trial. It was already before the Supreme Court, which was divided over the issue. All that is necessary is further briefings and a final decision.

The lawsuits in other states are “retail” in nature. They involve objections to particular votes, specific practices and local rules. For them to prevail would take a presentation of evidence, which would likely be contested by the other side. These challenges will be messy and will therefore take some time. In order to prevail, they would have to show that there were enough disputed votes to make a difference in the final outcome of the election in a given state. That will not be an easy task to do.

For Trump to reverse the outcome of the election, he needs to prove that there were enough invalid votes in enough states to win the 270 electoral votes for victory. Turning around the results in any particular state, even in Pennsylvania, will not do that. He must prove a difference in several states. That depends on which states, if any, he wins in court and then how many electoral votes they have. It is a daunting battle. For 2000, all Bush had to do was to focus on Florida, and he could do that as a matter of wholesale constitutional law rather than retail evidentiary challenges. That decision serves as only a partial precedent for all the current cases.

Challenging election results, even with demanding recounts or bringing lawsuits, is part of democracy, when the ultimate loser notes the results and concedes defeat, as Gore did back in 2000. Trump and his lawyers should not be condemned, as they have been by many, for pursuing the lawsuits. Once the remedies are exhausted, the American way demands that the loser concedes with the final mandated outcome.

Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is an author whose newest book is “The Case For Liberalism in an Age of Extremism” available on Kindle and whose podcast “The Dershow” is now available on Spotify and YouTube. Find him on Twitter @AlanDersh.

Tags America Constitution Donald Trump Election Government Politics President

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