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Michael S. Kang Donald Trump's legal strategy makes no sense for winning the vote count. So what is he doing?

The math on the president's various legal challenges doesn't get him to 270. Here's what his campaign must want to do — and why it won't work.
Image: Donald Trump, fist
President Donald Trump raises his fist as he reacts to early results from the 2020 U.S. presidential election in the East Room of the White House on Nov. 4, 2020.Carlos Barria / Reuters file

The presidential election is over; the overwhelming majority of votes have been counted; all the state races have been called; and Joe Biden has been credited with comfortable majority of both the popular vote and, prospectively, the Electoral College. Almost all the objective experts and election lawyers from both major parties agree Biden has won enough battleground states by sufficiently large margins that any recounts or legal challenges by the Trump campaign are exceedingly unlikely to change the election outcome, even if they change some vote totals at the margin.

Almost all the objective experts and election lawyers from both major parties agree Biden has won enough battleground states by sufficiently large margins.

Yet the Trump campaign and its supporters appear as determined as ever to carry on with myriad legal challenges, at times pressing highly questionable claims or ones that would affect a very small number of ballots. Contrary to all objective indications, they implausibly insist that Trump won the election and that their election challenges will root out election fraud and irregularity that so far have gone unreported.

So what’s going on?

The Trump campaign almost certainly understands that recounts will not affect the election outcome. A survey of statewide recounts over the past 20 years found that a recount modifies the vote margin by an average of 282 votes; the lone state recount of the 2016 presidential election resulted in a modification of just 131 votes. The most famous presidential recount in recent memory — in Florida after the 2000 presidential election — potentially could have decided that contest only because the whole nationwide race came down to a single state where the vote difference between the presidential candidates boiled down to just a few hundred votes.

Neither condition is true this year: Biden’s projected victory does not depend on any single battleground state, nor is the margin in any of those states as close as it was in 2000.

What’s more, virtually none of the legal claims of election irregularity that the Trump campaign has filed seem to hold any water. Courts already have dismissed many of their lawsuits in short order — sometimes within minutes of hearing out their lawyers. None of their post-election claims — save one in Pennsylvania, over a deadline for a small number of new voters to provide identification — has prevailed so far. Instead, they’ve provided the courts with a scattershot of individual, unsupported allegations.

Accordingly, secretaries of state in nearly every state where the Trump campaign is disputing the count, from both parties, recently agreed that they have not found any sign of widespread voter fraud to support the Trump campaign’s claims.

And although Trump has a legal right to bring good-faith challenges and demand recounts where margins are close enough to justify one, almost every objective expert seems to agree that none of their current efforts will overturn the election results in favor of Biden.

Instead, the Trump campaign may be pursuing a longshot ploy that is more political than legal in nature. It seems that they may simply hope to delay certain states with Republican legislatures from certifying the vote counts and convince those legislatures to directly appoint Trump electors to the Electoral College instead of Biden electors.

The Atlantic reported an early sign of this strategy in September, when Republican leaders in Pennsylvania admitted discussing among themselves and with the Trump campaign the idea of overriding the state’s election outcome in case it went against the president. With the Trump campaign now seeking to delay the certification of election results under the guise of rooting out supposed election fraud, it’s useful to revisit the potential gambit:

Based on allegations of massive election irregularity and therefore a failed election in a state, Trump would ask that state’s legislature to ignore their state’s popular vote and directly appoint presidential electors in his favor. As a result, those states then would end up sending two competing sets of presidential electors to Congress — one appointed by law according the election results for Biden, but also this additional set of electors appointed after the election by the state legislature for Trump.

So, by dragging out and tarring the election process, the Trump campaign may hope to provide political cover for Republican state legislatures.

So, by dragging out and tarring the election process, the Trump campaign may hope to provide political cover for Republican state legislatures to start considering this gambit — and thus far, Donald Trump, Jr., and some prominent Republican politicians and commentators have urged state legislatures to do so. The Trump campaign’s unsubstantiated public allegations of election already have succeeded in convincing 70 percent of Republicans that Biden’s apparent victory was the result of election fraud or irregularities.

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The two houses of Congress probably would disagree along party lines about which set of electors to recognize for purposes of the Electoral College, but the Trump campaign’s hope would be that the Republicans in Congress would favor the Trump electors and ultimately throw the presidency to Trump. Although the Democrats hold the numerical majority in the House, each state delegation in the House collectively gets one vote, and the Republicans control more state delegations than the Democrats, and thus have the advantage if the House decides the next president under the 12th Amendment.

At the moment, though, it appears unlikely that this gambit will play out. Immediately after the election, the Pennsylvania senate leader reiterated that his state legislature will not appoint its own electors despite the worries raised by The Atlantic report. Michigan, Arizona, Georgia and North Carolina (which was called for Trump on Friday) followed suit last week.

What’s more, this complicated gambit probably wouldn’t succeed as a legal matter. Any legislature’s appointment of presidential electors after the election is obviously unconstitutional because the legislatures of every state long ago dictated that their presidential electors will be selected by the voters. So seizing back the appointment of electors after an election because the legislature doesn’t like the voters’ decision violates state law and basic due process.

Admittedly, like most elements of this scenario, the law here is untested because the scenario hasn’t played out in more than a century. When a version of it occurred in 1876, Congress enacted the Electoral Count Act of 1887 to sort out the mess if it were ever to occur again; that law favors Biden.

Assuming that Congress did receive two competing sets of electors from a state, the set of electors appointed under settled state law at the time — i.e., those appointed according to the election result — are supposed to be recognized. And even if some claim about election fraud clouded that judgment, the Electoral Count Act directs Congress to recognize the set that is certified by the governor of the state, not chosen by the legislatures. (Pennsylvania, Wisconsin and Michigan, notably, all have Republican-controlled legislatures and Democratic governors).

So, it’s safe to say that this gambit is as unlikely to succeed in overturning the election results as the Trump campaign’s election challenges.

Of course, the whole plan to make an end-run around the will of the people is short-sighted: If we don’t have elections as our way to decide our political differences, people on both sides will resort to other means to do so, and none of us win if that starts to happen. But understanding why the Trump campaign is trying to drag out the end of the election process might help us understand the complicated lengths to which the Trump campaign might go as it pursues its quixotic legal challenges.

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