Shortly after the Associated Press projected that Joe Biden would win enough electoral college votes to defeat President Donald Trump, Trump released a statement saying that his campaign would go to court Monday to fight the outcome. “Networks don’t get to decide elections,” Trump’s personal attorney, Rudy Giuliani, said later at a press event at a landscaping company in Philadelphia, “Courts do.”
That is, of course, not the case. With the notable exception of the 2000 presidential race, which was effectively decided by the Supreme Court in Bush v. Gore, it is voters who decide elections. And that, legal experts say, is the main flaw with Trump’s strategy: Biden has won too many votes for the Trump campaign to mount any legal challenge that would actually change the outcome.
For an election to be successfully litigated, experts say, the margins between the candidates have to be exceedingly close. The dispute between George W. Bush and Al Gore two decades ago, for example, hinged on just 537 votes in Florida. Election litigation is only consequential, says Nathaniel Persily, a professor at Stanford Law School, “if the number of contested ballots exceeds the margin of victory.”
As of November 7, Biden is leading Trump by over 4 million votes, according to the Associated Press. The state-by-state count that determines the electoral college count is even more daunting for the President. Biden leads Trump by nearly 35,000 votes in Pennsylvania, 25,700 in Nevada, 20,500 in Arizona and 7,250 in Georgia. Trump needed victories in nearly all of these states to amass 270 electoral votes, and the Associated Press has called every one but Georgia in favor of Biden. (Other outlets have withheld calling Arizona for Biden). Recount laws vary by state, but in every state except Georgia, the margins appear too large for the states to automatically issue one.
The campaign has other legal options beyond recounts, but experts say those are also unlikely to succeed. The Trump team can, for example, contest the validity of the remaining ballots that have yet to be counted. Or they can sue to get some ballots thrown out on the basis that they were filled out unlawfully. So far, their record on both counts is not encouraging for the President.
Prior to the election, Republicans in Texas, including an activist and a local legislator, tried to get ballots thrown out in Harris County, where they argued that nearly 130,000 ballots cast at a “drive-through” polling location were unconstitutional. That argument did not pass muster in either state or federal courts. In Nevada, the Trump campaign unsuccessfully tried to sue to halt ballot-counting in Clark County, only to appeal to the Supreme Court after a lower court rejected the claims. (The campaign has tentatively reached a settlement with Nevada officials to allow increased access).
The post-election legal landscape doesn’t look much better for Trump, as the barrage of litigation his campaign has already filed since November 3 shows. In the past four days, the campaign has filed more than half a dozen lawsuits in state and federal courts in Pennsylvania, Nevada, Michigan and Georgia. Most of these cases attempt to push for more access to the ballot counting process, and allege without evidence that fraudulent votes have been cast. They’ve seen little success. Judges in Michigan, Nevada, and Georgia have collectively rejected three cases.
The only real success the Trump campaign had this week was in Philadelphia, where a Judge ruled they could be within six feet of watching the canvassing process. But even that decision has already been appealed to the Pennsylvania Supreme Court, and legal experts say that, at a minimum, it will merely slow down the process.
Most important, even if the courts allow more Republican-led lawsuits to proceed, and the campaign wins some of them, experts say any decision is unlikely to alter the outcome because Biden’s lead over Trump is too large. “We’re not seeing situations that the margins of change are possible in areas that would change the electoral count,” says Myrna Perez, director of the Brennan Center’s Voting Rights and Elections Program.
Taken together, few see a way to victory for Trump through the courts. “None of the litigation filed so far seems plausibly calculated to overturn the result of the election. Many complain about things like access to the counting facility, which doesn’t change election outcomes,” Rick Hasen, an election law expert at University of California Irvine, wrote in an e-mail to TIME. “Some raise unsubstantiated claims of fraud, and on a very small scale.”
The one lawsuit Hasen thinks still has a chance of success is the dispute over Pennsylvania ballots that arrived between election day and November 6. In mid-September, the Pennsylvania Supreme Court ruled that ballots received through November 6 could be counted, even if they did not have a legible postmark. The Pennsylvania Republican Party twice appealed to the Supreme Court. The second time, the court declined to expedite the case, but did not rule out hearing it after the election. On Friday, in response to a request from Pennsylvania Republicans, Justice Samuel Alito ordered that all mail-in ballots received after election day must be segregated, even though election officials had already ordered counties to do that.
Pennsylvania Attorney General Josh Shapiro, whose office is representing the state at the Supreme Court, was undeterred by the prospects of future litigation. “We have followed the laws here in the commonwealth. Legal eligible votes are being tallied, and we will respect the will of the people,” he said. “Should further litigation come we will respond to it and we will protect the people of Pennsylvania.”
Here, too, however, the number of ballots in question does not appear to be enough to change the outcome. Hasen said that even if the Supreme Court takes up the case “the number of ballots involved is very small compared to the likely Biden victory.”
So why pursue a legal strategy that seems so clearly destined to fail? For Trump, some observers say, the goal may not be to win the election so much as to cast a pall of uncertainty over the results, thereby encouraging the perception, however unfounded, that he is the victim of fraud and remains the rightful leader of his fervent base. “This is all looking increasingly like disinformation through litigation, rather than plausible legal claims,” says Joshua Geltzer, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law.
If that is Trump’s strategy, it could prove costly for a historically polarized country. It won’t get him the votes he needs for a second term, but it will ensure the divisions he exacerbated will be harder to undo when he inevitably leaves office.
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