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With lawyers descending on Pennsylvania and other battleground states, the news might sound like an echo of the 2000 presidential election. The President has said he wants the Supreme Court to intervene to declare him the winner, stoking memories of the Court’s decisive intervention in Bush v. Gore. His campaign has filed (or said it will file) lawsuits across the country, from Pennsylvania to Michigan to Georgia to Nevada.
But this isn’t Florida in 2000. There are critical differences between the legal and political landscapes in the 2000 election and today that make it exceptionally unlikely that any of this legal wrangling will matter.
The Bush and Gore campaigns in 2000 were presented with a remarkable situation: the outcome in the Electoral College hinged on a single state in which the candidates were within a few hundred votes. That razor-thin and decisive margin yielded a crisp legal strategy for the Bush campaign: before a recount, it was ahead in Florida. It went to court to stop the recount, and when it got that result from the Supreme Court the election was decided.
There is no similar coherent legal strategy behind the lawsuits the Trump campaign has filed. The President and his supporters are blasting a common (and baseless) theme of election theft, but free-floating and evidence-free allegations alone won’t convince even a dedicated partisan judge to intervene. What concrete action does the President want a court to take? It’s hard to say. The President tweeted “STOP THE COUNT,” which is an odd request for the candidate who is behind at this point in enough states for him to lose the election. What the President presumably means is that he wants counting to stop in Pennsylvania and Georgia, where he is ahead and losing ground — but for the counting to continue in Nevada and Arizona, where he is behind but could potentially gain some ground. But the counting will go on in every state. The fact that a candidate does not like the ultimate vote totals provides absolutely no legal basis for a court to stop the counting partway.
The only lawsuits that could conceivably make a difference are those that seek to invalidate a batch of ballots that’s big enough to flip a result in a state. Many of the Trump campaign’s lawsuits don’t even ask for that. Take the case in Michigan (which the Trump campaign just lost anyway). It sought to halt the counting of ballots, which sounds bad. But once you take a closer look, it wouldn’t have made a difference to the results even if the Trump campaign had won. The suit asked for counting to stop until its observers got more access to the counting process. Even if the court had given the Trump campaign everything it asked for and more, it wouldn’t have materially changed the vote totals. (Unless you believe in the rankest conspiracy theories about local election officials, for which there is absolutely no evidence.)
So are there cases that could actually matter? There are a few cases that challenge the validity of ballots, but none of them are likely to be decisive to the outcome of any state — much less be decisive in the Electoral College. The cases challenging the deadline extension for receiving mail-in ballots in Pennsylvania and North Carolina are still pending before the Supreme Court. But in both states, the margin looks likely to be tens or even hundreds of thousands of votes — so the legal question of whether to count these mail-in ballots won’t make a difference to the outcome in either. There are scattered lawsuits challenging “curing,” a long-standing process that allows voters to fix problems with their mail-in ballots — but those cases affect even fewer ballots. The Trump campaign has indicated it will seek a recount in Wisconsin, but no recount in history has come anywhere near closing a 20,000 vote lead. The campaign announced this morning that it will file a lawsuit in Nevada alleging thousands of “illegal votes,” but it hasn’t actually done so yet — and it has offered no evidence to support its allegation.
If none of these lawsuits are remotely likely to change the outcome, then why is the campaign filing them? One reason, which is understandable, is that there aren’t any other options left. If the Biden campaign were facing the reverse circumstances, it would file every lawsuit it could. But the rhetoric surrounding the Trump campaign’s cases is far more corrosive than the legal claims themselves, casting doubt on the integrity of the election and on the democratic process itself. That is the only ultimate meaning of these lawsuits: a byproduct of the sound and fury emanating from the Oval Office, signifying nothing in the law.
Matthew A. Seligman is a Supreme Court litigator and legal scholar in Washington, D.C. He is currently teaching a seminar at Harvard Law School on disputed presidential elections.
