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‘People Will Stop Believing in the Process.’ Why Donald Trump’s Legal Strategy Is Dangerous Even If It’s Likely to Fail

7 minute read
Updated: | Originally published:

President Donald Trump’s strategy of flooding state and federal courts with spurious and unsuccessful lawsuits challenging Joe Biden’s election victory has mystified lawyers on both sides of the aisle. He’s not likely to win any of these challenges, and even if he does, they are not significant enough to overturn the election results. So what’s the point?

Tuesday night’s tussle in Wayne County, Michigan, offers some clarity. Trump’s lawyers don’t have to win in court; they only have to wreak enough havoc in the legal system—and sow enough doubt among the American public—that state boards slow their process of certifying the election results, thus potentially politicizing the process by which states confirm the electoral winner.

Jenna Ellis, a legal adviser to the Trump campaign, acknowledged the strategy in a tweet on Nov. 17. After two Republican members of the Wayne County Board of Canvassers, alleging voter roll discrepancies, initially refused to certify election results in favor of President-Elect Joe Biden, Ellis wrote, “If the state board follows suit, the Republican state legislator[s] will select the electors. Huge win for @realDonaldTrump.”

The Wayne County Board of Canvassers later reversed itself, unanimously voting to certify Biden as the winner. But Ellis’s tweet stands. It illustrates that Trump’s lawyers’ hope is to gum-up state and county election certification processes, thus incentivizing Republican-led legislatures in states where Biden won to send a slate of Trump electors to Congress in January. The strategy amounts to an end-run around the traditional electoral process, and represents an effort to undermine American voters’ will.

If a state election board fails to certify an “electoral slate” by the Dec. 8 safe harbor deadline, it increases the possibility that the state legislature, which is Republican-led in many key states, could choose to send an electoral slate that supports Trump, even if their state’s voters backed Biden. The top Republican in the Michigan State Senate has said he would not support such an effort and top legal experts say that outcome is very unlikely. Trump invited Michigan Republican lawmakers to meet with him at the White House on Friday, news outlets including the Associated Press and CNN reported on Nov. 19.

Trump’s most senior legal advisers appear committed to giving the extraordinary effort a try. Rudy Giuliani, Trump’s personal attorney who he recently tapped to oversee the post-election legal process, told associates that his goal is to cast enough doubt on the election that state legislatures won’t certify the results for Biden. “Rudy told people he was trying to get the legislatures to flip,” a source familiar with the campaign’s legal strategy tells TIME. “Rudy’s view of the world is if he does a good enough job inflaming the results, Pennsylvania won’t certify, Wisconsin won’t certify,” the source adds.

In the hours before Giuliani appeared in federal court in Pennsylvania to represent the campaign on Nov. 17, two other lawyers for the Trump campaign withdrew from a lawsuit, according to court filings. A source familiar with the situation told TIME the attorneys withdrew because they were uncomfortable with Giuliani’s intent to invoke unsubstantiated claims about widespread voter fraud under oath.

Ellis did not respond to questions from TIME about whether the campaign’s ultimate goal is to convince legislatures to consider electoral slates that do not reflect their states’ popular vote.

A long-shot strategy with lasting damage to American democracy

Both Republican and Democratic legal experts say the Trump campaign’s strategy is extremely unlikely to usher in a second Trump term. Legal experts say that Biden’s margin of victory is simply too wide in too many states to mount a credible challenge. And making an argument for state legislatures to appoint slates of electors is incredibly difficult, says Tom Spencer, a lawyer for George W. Bush during the 2000 presidential election recount. “The election that would be the subject of such a call by the Republican leadership would have to be so odiferous and so tainted by real, substantive demonstrations of fraud and cheating and unconstitutional activity that no reasonable person could say it was a free fair honest election,” he says. “That’s a really high bar.”

But the effort is deeply damaging to the American democratic project, experts agree. By filing reams of lawsuits, crying fraud, and publicly attempting to get elected officials to subvert the democratic process, the sitting President has already succeeded in convincing the majority of Republicans that something is amiss. A Reuters/Ipsos poll conducted Nov. 13-17 found 52% of Republican respondents said Trump “rightfully won” the election, while only 29% said Biden “rightfully won.” And 68% of Republicans said they were worried the election was “rigged.”

“Trump is losing in court after court, in state after state. So the damage he’s doing isn’t to the likelihood of President-elect Biden assuming office in January 20, which will happen,” says Josh Geltzer, the executive director of Georgetown Law’s Institute for Constitutional Advocacy and Protection. “The damage Trump’s doing is to how large portions of the American public view the legitimacy of that presidency and of our democracy itself. Democratic self-government is one of the great acts of collective faith in human history, and Trump is trying desperately to break that faith.”

The Trump campaign’s legal strategy is “not going to stop Biden from being president; it’s going to be corrosive,” says Ned Foley, director of the election law program at The Ohio State University. “If each and every time we can’t acknowledge the validity of the opponent’s win, then at some point people will stop believing in the process and accepting it.”

Republican donor Dan Eberhart says he’s tiring of the Trump campaign’s machinations. “[James] Madison and the founders forgot a circuit breaker or sore loser law to check a President that loses reelection,” he tells TIME.

Trump supporters say the strategy helps the President save face, remain relevant, and lay the groundwork for whatever he may do after the presidency. “Trump has always been a never-give-up, against-all-odds guy. That’s what got him elected in 2016 and that’s what MAGA World loves about him,” says Eric Bolling, a Sinclair Broadcast Group television anchor in touch with Trump. “Whether Trump prevails in court or not, putting up a fight was always a given. The fight will guarantee his supporters follow him for whatever comes next—media mogul, political kingmaker or both.”

America’s arcane electoral process

In a normal political environment, the weedy process of certifying electors doesn’t get much attention. But this cycle, the details matter. When voters cast their ballots for President, they are actually voting for electors—a slate of individuals who will certify their state’s results based on the popular vote outcome in the state. The number of electors each state gets is determined by federal law, and the electors themselves are usually selected by state parties prior to election day.

After election officials certify the votes, federal law mandates that a state executive, usually the Governor, approves the slate of electors for the winning candidate. If states complete this process before that Dec. 8 safe harbor deadline, they are virtually guaranteed Congress will accept that slate of electors when the body convenes on Jan. 6 to confirm the results.

But three of the key swing states that were crucial to Trump’s reelection prospects have Democratic governors and Republican legislatures, creating a wedge for Giuliani and other Trump lawyers to exploit. If they can convince these legislatures to appoint their own slate of electors to send to Congress or drag the legal fights out past December 8, the fight would then play out in Congress on Jan. 6, and could lead to the House of Representatives ultimately selecting the President. (The House is Democrat-led, but the Twelfth Amendment stipulates that in a “contingent election,” each state delegation receives one vote).

-With reporting by Brian Bennett/Washington

Nov. 19:
This article has been updated to clarify the process by which the U.S. House would vote if that chamber selects the next President.

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Write to Alana Abramson at Alana.Abramson@time.com and Tessa Berenson Rogers at tessa.Rogers@time.com