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Jessica Levinson  'Safe harbor day' highlights Trump's election lawsuit failures — and the judiciary's success

The judiciary may not act as a guardrail forever and on all issues, but it did on Trump’s post-election litigation.
US-POLITICS-COURT
Neil Gorsuch with President Donald Trump after taking the judicial oath during a ceremony at the White House on April 10, 2017.Brendan Smialowski / AFP via Getty Images

Happy safe harbor day, everyone! Don’t remember celebrating this day as a kid? Well, desperate times call for desperate measures, and that means marking federal election deadlines that used to pass unnoticed.

Under federal law, the safe harbor deadline is the date by which states should resolve all of their Electoral College disputes and finalize their presidential election results. If states certify their results by the deadline, which is six days before the Electoral College meets and votes, then Congress must accept those states' presidential election results.

Don’t remember celebrating this day as a kid? Well, desperate times call for desperate measures, and that means marking federal election deadlines that used to pass unnoticed.

All of this means that we are close to the finish line. Like it or not, President-elect Joe Biden will soon become President Biden and there are no legal challenges or political pressure tactics that will change that. The members of the Electoral College officially vote Dec. 14. Biden will easily obtain the 270 votes needed to become the 46th president of the United States.

Why can I be so sure about what will happen next when President Donald Trump and his legal team have cried “fraud” for months? Because the judiciary has done its job. Trump’s post-election litigation strategy had and will continue to fail because the judiciary has held. State court judges and federal judges, Republican judges and Democratic judges have almost, without exception, thrown out or rejected the baseless suits filed by the Trump legal team and its allies. This has been a bad post-election period for Trump and a good month for the rule of law. According to prominent Democratic lawyer Marc Elias, Trump and his allies have won one post-election case, they have lost 49.

There was a good deal of pre-election handwringing about whether Trump could potentially subvert the will of the voters and win the presidency via the courts system. These fears were bolstered by the fact that Trump and the GOP-led Senate has been so efficient at naming federal judges. Trump has appointed one-third of the Supreme Court and approximately one-fourth of the entire federal bench. And the president made no secret of the fact that the rush to confirm Justice Amy Coney Barrett was in part based on his desire to solidify a conservative 6-3 majority for any post-election litigation.

No thanks to Trump, trust in the Supreme Court especially has become divided, with liberals far less likely than conservatives to have a favorable opinion of the court. But judges are ultimately not politicians. A conservative legal decision does not always lead to a Republican political win. One need only look to last year’s Supreme Court term. In one case, Justice Neil Gorsuch, a Trump appointee, wrote an opinion concluding that federal employment law protects people from discrimination on the basis of sexual orientation and gender identity. In another, Chief Justice John Roberts, a President George W. Bush appointee, wrote the opinion preventing the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program.

Do judges sometimes act like politicians in robes? Sure. But judges have a different job than politicians. They apply the facts of each case to the applicable law. Sometimes, the answer is clear. Sometimes, it requires a good deal of discretion and interpretation to arrive at a decision.

And when it came to the post-election cases brought by the Trump legal team, little judicial discretion or interpretation was needed. Again, Trump and his allies have lost essentially all of the post-election litigation cases that have already been decided. These are not close calls.

Most of the allegations put forth by Trump and his allies centered on unproven and unsubstantiated allegations of voter fraud. Of these, the allegations made in court filings were often far more limited than Trump rhetoric would suggest, focusing on things like whether election observers had meaningful access to watch votes being counted.

Trump and his allies have lost essentially all of the post-election litigation cases that have already been decided. These are not close calls.

In Pennsylvania, it was one of Trump’s appointees, Third Circuit Court of Appeals Judge Stephanos Bibas, who wrote the majority opinion foreclosing Trump’s last remaining legal case in that state. Bibas’ opinion was joined by two Republican appointees. Bibas wrote, “Calling an election unfair does not make it so. Charges require specific allegation and then proof. We have neither here.” This is the judicial equivalent of a gut punch.

Similarly, the Pennsylvania Supreme Court unanimously rejected a request to trash approximately 2.5 million mail-in ballots. The lawsuit, brought by one of Trump's biggest supporters in Congress, Rep. Mike Kelly — was an attempt to overturn a law Pennsylvania passed last year creating no-excuse mail voting. The court dismissed the case based on the doctrine of laches, finding that the challengers waited too long to claim there was a problem with how the election was being run.

The Trump legal team told us they had many successful legal claims in Pennsylvania. In the end, they did not.

And the Trump legal team’s losses do not end with Pennsylvania. Three judges on the 11th Circuit Court of Appeals, two appointed by Trump, unanimously rejected a lawsuit to halt certification of Georgia’s election results. Another 11th Circuit panel denied an appeal by Sidney Powell, a former member of Trump’s legal team. The judges concluded that they lacked jurisdiction to even rule on the claims. Judge Andrew Brasher, appointed by Trump, wrote the majority opinion.

Of course, it is troubling these decisions weren’t necessarily assured. Concerns before the election that the judiciary would crater were not entirely irrational. Thankfully, at least this time around, our worst fears were not realized. Judges did what they were supposed to do.

The judiciary may not act as a guardrail forever and on all issues, but it did on Trump’s post-election litigation. By learning from Trump’s many mistakes, the next sore loser candidate could, in other words, be far more effective. It will be up to judges of all partisan stripes to stand guard and protect our rules and democratic processes from attempted subversion. Protecting democracy is an ongoing process.