Trump team eyes legal, political Hail Marys as options for comeback fade

This story is published in a content partnership with POLITICO. It was originally reported by Kyle Cheney and Josh Gerstein on politico.com on November 6, 2020.

President Donald Trump is clamouring to avoid his electoral demise, and it appears his options have nearly dwindled to none.

But with his campaign insistent that the race isn’t over, despite increasingly insurmountable hurdles, the president’s allies have begun eyeing draconian manoeuvres to resuscitate his fortunes and stave off the possibility of a one-term presidency.

“Joe Biden should not wrongfully claim the office of the President. I could make that claim also,” Trump tweeted Friday evening, even after he had already made the dubious claim a day earlier. “Legal proceedings are just now beginning!”

Trump’s options are limited and extraordinarily unlikely to succeed. But here’s a look at the potential Hail Marys that Trump’s campaign is undertaking in court, as well as the even more far-fetched options his supporters have urged him to consider.

Litigate to block late-arriving mail ballots and ballot “curing”

Most of the initial wave of election-related litigation that has an actual chance of directly affecting vote counting takes aim at late-arriving postal votes and at a practice known as “curing”, in which voters can visit elections offices to fix problems with postal votes or issues related to in-person voting, such as failing to bring an ID.

A Republican congressional candidate in suburban Philadelphia filed a federal court lawsuit earlier this week over curing, but it got a sceptical reception from a judge and the candidate abruptly dropped it on Thursday. Lawyers say she will leave resolution of the issue to the Pennsylvania state courts. One state judge issued a ruling on Thursday that suggested the practice wasn’t prohibited by law, but an appeals judge on Friday ordered all such ballots segregated pending further litigation.

Litigation over late-arriving ballots faces an uphill battle for multiple reasons. The arguments are a bit stronger in places like Pennsylvania, where a three-day extension was ordered by a court rather than by the state legislature. The issue of the authority of state courts and officials to make those changes is the subject of two Republican petitions pending before the US Supreme Court. The Trump campaign has moved to join in that effort, but the Supreme Court declined to act in advance of the election. Even if a majority of the justices ultimately agree with the Republican Party arguments there, it is far from the clear that most justices would be willing to invalidate ballots that voters mailed while believing they would be counted even if they arrived after election day.

There is a more remote argument some Republicans have floated, including at the Supreme Court, that under federal law only votes that come in by election day count. But there is a long tradition in many states of using that day as a postmark deadline and allowing some period thereafter for ballots to arrive. Excluding such ballots would also disproportionately affect voters in the military, whose ballots more frequently show up late. And most states have days or weeks to certify their vote totals.

The biggest shortcoming in these arguments may not be legal but practical: There just may not be that many ballots at stake. It’s unclear how many ballots in Pennsylvania were subject to cure, but Lieutenant Governor John Fetterman, a Democrat, told CNN on Friday that he expected there to be only about 3,000 late-arriving ballots statewide.

If there aren’t enough late-arriving or cured votes to overcome Biden’s margin in Pennsylvania or elsewhere, the debate becomes an interesting one for future elections but an academic one for this year.

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Seek recounts and try to throw out ballots for signature mismatches or other reasons

The Trump campaign has already indicated it plans to seek a recount in Wisconsin, where vice-president Joe Biden currently has a lead of roughly 20,000 votes. In Georgia, Biden is also ahead, but his margin of about 1,500 votes will trigger an automatic recount under state law.

In Nevada, Republicans filed a federal lawsuit on Thursday challenging an automated system that the state’s most populous county used to match the signatures on postal votes to signatures on file. But after a hearing on Friday afternoon, a judge turned down the request to force the state to visually check every signature, which would have delayed the count. The Trump campaign could pursue similar efforts in other states to challenge individual ballots, but the process would be extraordinarily labour-intensive.

Historically, recounts rarely tend to move final results more than a few hundred votes. For example, in Wisconsin, former governor Scott Walker, a Republican, recently raised doubts about the notion that a recount could erase Trump’s deficit.

“During the past decade, a statewide recount has happened twice,” Walker said on Twitter. “Four years ago, the Presidential election results in Wisconsin went through a recount with Donald Trump picking up 131 votes. And in 2011, there was a swing of 300 votes in a Wisconsin Supreme Court race.”

Walker said a recount would be more feasible if the state’s final canvas of votes brought the tally closer or revealed errors in the process.

Enlist DOJ to intervene in legal actions

The Trump campaign and its allies are crying out for Attorney General Bill Barr to bring to bring the weight of the Justice Department to bear by investigating and acting on alleged irregularities in battleground states.

A law firm working for the campaign in Nevada sent a letter to Barr that asked him to investigate the voter rolls there based on what it called “criminal voter fraud” in the state. Lawyer Shana Weir said the campaign had concluded that 3,062 illegal ballots were cast by voters who actually live out of state. However, the claim appeared to be based on a computer match with a postal service database of change-of-address notices.

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That data isn’t reliable proof that a voter has moved out of state, since a voter may have moved and returned without cancelling the change-of-address or may have forwarded their mail without giving up residence in Nevada.

A Justice Department spokeswoman did not respond to requests for comment on the letter, but among some conservative activists and pundits, anger at Barr is rising.

“It’s time to put Bill Barr’s face on the back of milk cartons and ask his neighbours how long he’s been missing,” Emerald Robinson, a Newsmax White House correspondent, wrote on Twitter.

“Where’s @TheJusticeDept???” asked Texas Republican congressman Louie Gohmert, who tweeted a picture from Philadelphia.

Forcing election to the House

One long-shot scenario that both parties prepared for was the prospect of a 269-269 Electoral College deadlock. In that scenario, the election moves to the House of Representatives for a final decision.

Although Democrats control the House, and will continue to in the next Congress, the voting process would actually give Republicans an advantage: Each state gets a single vote, decided by its delegation. Republicans control more state delegations in Congress and will continue to next year thanks to a series of pickups in tough races.

Though this scenario was pretty much put to bed by the election results, any efforts by Trump to invalidate electors or contest vote counts in swing states would be with an eye toward sending the election to the House, where his Republican Party allies would have the edge.

A spokesman for the House Republican leader Kevin McCarthy did not respond to a request for comment on what the House’s role might be to help Trump salvage his election. But McCarthy made clear that he considers Trump’s campaign still viable, despite the challenging maths.

“Far from over. Republicans will not back down from this battle,” McCarthy tweeted on Friday.

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Rally state legislatures to appoint alternative elector slates, provoking a crisis

If Trump’s legal options fail to gain traction – and, in fact, several of his campaign’s lawsuits were summarily scrapped by state judges – his next tier of options becomes even more remote and centres on the Electoral College.

Trump converted from an Electoral College hater in 2012 to its biggest fan, when the system helped send him to the White House despite a substantial loss of the popular vote in 2016. Now, some of his staunchest allies are encouraging him to harness the untested ambiguities of the Electoral College to try to upend the results of the election.

One option to do that would be to encourage Republican-led legislatures in Pennsylvania, Michigan, Wisconsin and Georgia to appoint alternative slates of presidential electors and attempt to seat them when the Electoral College formally votes next month.

“Reminder to the Republican state legislatures, you have the final say over the choosing of electors, not any board of elections, secretary of state, governor or even court,” tweeted Mark Levin, a conservative radio and TV host whose show Trump has often touted. Levin’s tweet earned a re-tweet from the president’s son Donald Trump Jnr.

So far, no state-level lawmakers have embraced this push, and in fact, Republican Party leaders in Pennsylvania have sworn off it in the past. And legal scholars say a recent Supreme Court ruling about electors makes clear they aren’t independent actors and are supposed to carry out the will of the state’s voters.

But as Trump weighs his opens, and if he decides the courts won’t help him, the Electoral College and its many tripwires may be the last of his last-ditch efforts.

By Friday afternoon, even some Trump allies and surrogates were throwing cold water on the notion of alternative elector slates.

“Deeply opposed to idea of asking state legislatures to get involved in replacing electors,” the conservative radio host Hugh Hewitt said.

“Agree,” replied former acting intelligence chief Ric Grenell, who has helped barnstorm the country on Trump’s behalf in the last weeks of the election. “We take our concerns to the courts.”

Attempt to flip Democratic electors

The weeks before and after the 2016 election featured one of the most frenetic efforts in modern history to tip the Electoral College against the Election Day victor in modern history. But in the end, only two Republican Party electors bucked Trump, far short of the three dozen it would have required to block him from the Oval Office.

That effort, though, largely driven by Democrats, was built on the notion that dissension among Republicans might lead them to agree on an acceptable alternative to Trump – like Mitt Romney or John Kasich, they posited.

Any notion of mounting a similar lobbying campaign seems even more far-fetched today than it did in 2016. Biden may be seen sceptically among the Democratic Party’s progressive base, but there appears to be no will within the party to stop his ascension, let alone enough to cause dozens of Democratic electors to throw the country into crisis.

Enlist congressional allies to challenge the certification of Biden electors

Before the Electoral College tally becomes final, the vote must be certified by the newly seated Congress on January 6.

If Republicans manage to hang on to the Senate – a fact that won’t be known until January 5, and possibly later – Trump might be able to recruit allies in both chambers to contest electoral votes from states that he has baselessly accused of committing rampant fraud against him.

All it takes is one lawmaker’s objection each in the House and Senate to contest certain electoral votes. And those challenges are then debated and decided separately by the House and Senate.

The House, still controlled by Democrats, would be certain to reject such challenges. And Senate Republicans have given no indication they would back such an effort. But if such an objection occurred and the branches split along partisan lines, Congress would enter a constitutional grey area.

It’s unclear what happens to disputed electors if Congress deadlocks. But one school of thinking is that the contested electors are simply removed from the count, reducing the number of votes required to win the presidency.

House Democrats challenged the electoral vote count in 2000, with outgoing vice-president Al Gore, who had lost to George W. Bush, presiding over the Senate. But no senators joined the call to launch a formal deliberation. A similar scene played out in 2016, with Biden standing on the House’s rostrum.

“It is over,” Biden said to despondent Democrats.

This time, it would be vice-president Mike Pence fielding any objections that might arise from Republicans, and it remains to be seen whether he would issue a similar pronouncement.

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