Trump’s Legal Blitz Isn’t Contesting Enough Votes to Win

President Donald Trump’s hopes of reversing the outcome of the 2020 election in the courts are running into the reality that the numbers just aren’t there in terms of votes he can dispute -- at least not yet.

In their most advanced legal challenge, the Trump campaign and the Republican Party are trying to have the U.S. Supreme Court toss Pennsylvania ballots that arrived after Nov. 3. But, with all but four of 67 counties reporting, state officials have only logged 7,800 such ballots, said Jacklin Rhoads, spokeswoman for Pennsylvania Attorney General Josh Shapiro.

Biden’s lead in Pennsylvania stood at more than 45,000 votes Monday afternoon, not including the late-arriving ballots at issue.

“If those ballots couldn’t change the election to make any difference to how Pennsylvania will be decided, then he doesn’t have a claim he can bring,” said Deborah Hellman, a University of Virginia law professor.

Trump has suggested that he’s counting on the Supreme Court’s 6-3 conservative majority, including three justices he appointed, to rule for him in election disputes in any battleground states. But precisely what kind of disputes could result in the purge of enough votes to tilt the outcome in the president’s favor remains unclear. And even if he managed to somehow reverse the outcome in Pennsylvania, Trump would need to do the same in more states to actually notch enough electoral votes to win.

At a Saturday press conference held just as the major networks were calling the election for Biden, Trump personal lawyer Rudy Giuliani hinted that hundreds of thousands of votes might be overturned by a federal civil rights lawsuit he planned to file in Pennsylvania alleging that Republican observers were excluded from areas where mail-in ballots were tabulated or kept too far away to watch in a meaningful way.

The Trump campaign on Monday said it filed a new suit in federal court in Pennsylvania seeking to block certification of the state’s election results on the grounds that it was blocked from observing the counting of more than 680,000 votes, mainly in the Democratic-leaning areas in and around Philadelphia and Pittsburgh. The filing of the suit couldn’t be confirmed on the court docket Monday evening.

Guiliani said the campaign was looking at similarly challenging large numbers of ballots in Michigan and Wisconsin. The campaign has brought claims in Nevada and Arizona over smaller numbers of votes.

But legal experts said the idea that a court would take the drastic step of invalidating votes over such hypothetical claims was wishful thinking by Republicans.

“A court would not set aside the results of an election, or particular votes, based on violations of laws concerning observation of the counting process,” said Michael Morley, an assistant law professor at Florida State University who’s worked on election emergencies and post-election litigation. “Courts will not disturb election results based on unproven generalized claims about the theoretical possibility of fraud.”

The Trump campaign has made the same claims about being denied access to the counting process in state courts in Philadelphia, and the Pennsylvania Supreme Court on Monday agreed to hear arguments in the case. The campaign, which says it should’ve been allowed to observe the process from a distance of no more than 6 feet (1.8 meters), also tried to argue to a federal judge that its constitutional rights were being violated.

U.S. District Judge Paul Diamond in Philadelphia couldn’t quite see how, noting Democrats were subject to the same limitations. “I don’t know that anybody has a right to stand within a particular distance,” the judge said at the hearing Thursday before dismissing the case.

A decision by the Pennsylvania Supreme Court on the observation process could theoretically be appealed to the U.S. Supreme Court. That was the path followed by the late-arriving ballot issue. The state high court extended the deadline for ballots to be received by three days because of the coronavirus pandemic and expected delivery delays.

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