Everyone who knows election law is on the same page at this point — Trump has not only lost the election at the ballot box, but also in the court room
Donald Trump is having a terrible November. First, he loses the presidential election as an incumbent in historic fashion. Then, in his much-hyped litigation explosion to show the world that he really won on November 3rd, he has lost in court repeatedly. There’s just no two ways about it: Donald Trump will leave office as an epic loser
By now, unless you’ve been living under a rock for the past two weeks, you know that Trump lost the presidential election to Joe Biden. Biden received 306 electoral college votes to Trump’s 232. This is the same amount Trump won by in 2016, which Trump and his advisers touted then as a “landslide.”
What makes Biden’s “landslide” more impressive is that, unlike Trump, Biden won the popular vote. Whereas Trump lost the nationwide vote tally by 2.8 million votes in 2016, Biden is on track to win the popular vote by 7 or 8 million. (He is currently ahead by 5.7 million, with millions of ballots left to be counted, mostly in Biden-friendly California and New York.) Biden is currently just under 51 percent of the total vote, leading Trump by 3.7 percent. (Both of these numbers should get bigger.) In 2016, Trump received just 46.1 percent of the total vote (losing to Hillary Clinton by 2.1 percent).
Most everyone knows this (even Trump himself apparently). What has been harder to keep track of is just how much losing Trump has been doing in his election-related litigation. Part of the reason is because court cases in multiple states are esoteric and hard to keep track of.
But part of the reason is that there’s just so much losing. By one election lawyer’s tally, Trump is 1-25 in election litigation so far. (By the time you read this, his record will probably be even worse.)
The losses have come in every conceivable way. When the Trump campaign has claimed election fraud, judges have routinely asked for actual evidence. In court, as opposed to on Twitter, litigants who make allegations have to back them up with proof. The Trump campaign has had none, and judges have taken notice. They have lectured Trump’s lawyers on the rules of evidence and the basics of hearsay. They have sifted through affidavits and found the same thing that every state administrator told The New York Times when it contacted each one — there has been no fraud in the 2020 presidential election.
Other losses have come because conservative lawyers have quietly asked courts to withdraw their lawsuits. Monday morning, for instance, lawyers asked federal courts in Michigan and Wisconsin to dismiss their claims, leaving no federal court cases challenging the results in those states.
Three cases out of Pennsylvania are emblematic of other problems that the Trump team is having. First, it’s running out of lawyers. In 2000, when George W. Bush litigated the Florida results to defeat Al Gore and become president, Bush had a team of the country’s best conservative lawyers. His litigation team was headed by James Baker, the former secretary of state, secretary of the treasury, and two-time White House chief of staff. Three of the team’s members are now Supreme Court justices (John Roberts, Brett Kavanaugh, and Amy Coney Barrett). There was no doubt that the nation’s brightest conservative lawyers were backing Bush’s claims.
In comparison, Trump is being represented by a clown car of lawyers. Big law firms have either backed out of representing him or explained with clarity that they are representing the Republican Party and not Trump. In the case being argued today in federal court in Pennsylvania, over the past three business days, Trump has had at least four lawyers leave the case. They’ve been replaced by a talk-radio host who wrote on his blog earlier this month that Trump’s legal strategy “will not reverse this election” and handsy Rudy Giuliani, now the leader of Trump nationwide legal strategy. Giuliani, who took the lead in arguing the Pennsylvania federal case this afternoon, may have once been a respected lawyer, but now he’s left peddling conspiracy theories in the combined parking lot of a crematorium, lawn center, and dildo shop. The contrast with Bush’s 2000 team could not be more stark.
Second, Trump’s attempt to throw out millions of votes is failing with judges because no judge will ever do this. This afternoon, the Pennsylvania Supreme Court made this point clearly. In this case, Trump has claimed that his observers were not allowed to watch the vote in Philadelphia and other parts of Pennsylvania. (Full disclosure: I was a Democratic vote count observer in Philadelphia.) Trump’s team succeeded in getting an appeals court judge in Pennsylvania to order Philadelphia to give all observers closer access to the count. Today, the Pennsylvania Supreme Court overturned that decision, saying Philadelphia complied with Pennsylvania law.
Importantly, the two Republicans on the court dissented. But their dissents weren’t real dissents. They argued the case shouldn’t have been heard because the counting is over. And then, in a clear rebuke to the Trump campaign, Pennsylvania’s chief justice wrote that any attempt to throw out “presumptively valid ballots cast by the Pennsylvania electorate” because of procedural irregularities would be “misguided.” In other words, judges shouldn’t disregard votes because a county might have conducted the election in a less than perfect manner. Voters deserve to have their votes counted.
Third, many of Trump’s cases are over minuscule numbers of ballots that won’t make a difference in the election. Some of his lawsuits have been over tens of ballots (when none of his state losses were by less than ten thousand votes). In Pennsylvania, where Trump currently is behind by 73,500 votes, he continues to press a Supreme Court case that contests about ten thousand ballots that arrived after November 3rd. Ten thousand votes isn’t going to matter in Pennsylvania, especially when Trump is behind and these ballots haven’t even been counted yet.
The one case Trump has won poses the same problem. In that Pennsylvania case, he successfully fought against the state giving people three extra days to cure defective ballots because of the pandemic. Like the Supreme Court case, there are very few ballots in this category, and they have not yet been counted.
Everyone who knows election law is on the same page at this point — Trump has not only lost the election at the ballot box, but also in the court room. He still has cases out there, but even if he won, none of them would overturn enough votes in enough states to make a difference. Even staunch Trump supporters in the Senate see the writing on the wall, as several of them congratulated Vice President-elect Kamala Harris on the floor of the Senate today.
Why? Because they know what everyone else knows. Donald Trump is a loser this November, multiple times over.