//  11/6/20  //  Commentary

It’s over. The major networks have confirmed that Joe Biden will win a majority of electoral votes. In fact, it won’t be particularly close. His margin in key states will be greater than Trump’s was in 2016, and his popular vote margin will be double Hillary’s. 

But the President appears prepared to do what he’s done for much of his life when he’s faced with an outcome he doesn’t like: sue, protest, and fail to admit defeat. It’s worth cataloging his next moves and explaining why it all adds up to precisely zero chance of success.

Recount: We’re headed for an automatic recount in Georgia. Trump’s also requested one in Wisconsin, and there may be recounts in other states as well.

These won’t work. Trump lost Wisconsin, where he’s requesting his first recount, by 20,000 votes. But, as I noted before the election, the average statewide recount flips 282 votes, but he needs to flip 50 times that amount. For context, the statewide recount in Wisconsin in 2016 added 131 votes to Trump’s total. Indeed, there has only been one statewide presidential recount that has ever worked: in Hawaii in 1960, about 300 votes flipped from Nixon to Kennedy, giving JFK an ultra-narrow victory, even though it first looked like Nixon had won by about 150 votes. That exception proves the point: Nixon was initially up in Hawaii in 1960 by 150, not 20,000. Trump’s got no shot.

Shenanigans: Another bucket of litigation we’re seeing is pure shenanigans. By that, I mean these are lawsuits that, even if successful, won’t matter. Lawsuits moving poll observers from 10 feet away to 6 feet away fall in this category. Even if Trump wins, so what? They don’t change the vote totals.

Also in this category is the much-discussed litigation over late-arriving ballots in Pennsylvania. Just today, Justice Alito issued a nothingburger order confirming that yes, Pennsylvania will segregate these challenged ballots from other mail ballots. That’s actually better for Biden than it is for Trump, because having them immediately separated and not yet counted will let us know quickly just how few ballots are in this bucket. Joe’s going to win Pennsylvania by about 100,000 votes or more. But all indications are that this bucket will have many fewer votes than that, so it won’t matter who those votes are for. You can’t flip a margin of 100,000 with a bucket of 15,000 votes. This is all pure shenanigans. It’s just for show, and I’ll have more to say soon about why he’s playing these games.

Hail Mary: Finally, there are rumblings of a hail mary: nullifying the popular vote in a few states and just having state legislatures to appoint Trump’s favored presidential electors. The great legal scholar Donald Trump, Jr. has started promoting this wild idea.

There are too many problems with this theory to list, but among them are: the Republicans in the Pennsylvania legislature have already rejected it; it violates voters’ fundamental right to cast a vote and have it actually count; it violates federal law that requires presidential electors be chosen on election day itself; and it violates pre-existing state law in Pennsylvania setting a popular vote as the way to choose presidential electors. That’s not to mention it would be seen as a coup and lead to mass protests, riots, or worse. Not happening.

Here is the upshot. Whether any attempt in the next month falls into the recount bucket, the shenanigans bucket, or the hail mary bucket, the odds of success are the same. Zero. 


How Nervous Should You Be About Election Day?

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

Versus Trump: The Law Headed Into The Election

11/2/20  //  Commentary

Will this be the last Versus Trump before Trump loses reelection? Who knows, but, on this week’s episode, Jason and Charlie discuss key theories that will shape which votes count. Listen now!

Charlie Gerstein

Civil Rights Corps

Kavanaugh's Wisconsin Opinion Flunks Originalist Test of Constitution's Text and History

10/30/20  //  In-Depth Analysis

Brianne Gorod & Charlie Miller: Contrary to Justice Kavanaugh’s suggestion, there is nothing sacrosanct about November 3, and no requirement that the country must know the victor of the presidential election that night.

Brianne J. Gorod

Constitutional Accountability Center