Trump doesn't have it in him

Matthew Walther
·3 min read

Barring a month-long legal campaign that overturns the apparent results in multiple states, Donald Trump is not going to be re-elected. It is unclear exactly what legal remedies are available to the president and how many discrete legal challenges would have to be mounted in Pennsylvania, Michigan, Nevada, and elsewhere. The outcomes of each one would be irrelevant to those of the others — legally speaking, he would have to run the table.

It is just about possible to imagine a plausible case in Pennsylvania making its way to the Supreme Court. The basis for this would not be allegations of widespread "fraud" but the Pennsylvania Supreme Court's decision to override the state legislature, which is supposed to be the final authority on election questions. Reading between the lines of the statement issued by Justice Alito last week, something far more audacious than the invalidation of a few thousand segregated ballots emerges: the argument that the state's liberalization of mail-in voting was voided by the lower court's actions. This could mean nullifying hundreds of thousands of votes sent by mail or even sending the choice of 20 electors back to the legislature itself, essentially dismissing the recorded vote tally as a corrupted straw poll.

What about other states? North Carolina and Alaska should have been called for Trump days ago. Georgia is headed for a recount, and it is entirely possible that forthcoming military ballots will give him the edge without the need for litigation. But he would still need one more state, either Michigan, Wisconsin, Arizona, or Nevada, to reach 270 electoral votes.

In Michigan, the GOP is claiming that the same software that initially misidentified 6,000 ballots in Antrim County was used in 43 other counties. It is less certain how such charges, assuming they can be substantiated, could be combined with more tangible but less damning claims of wrongdoing in the state (expulsion of GOP-affiliated observers from counting centers in Detroit). These are separate challenges, and if the latter were decided in the president's favor the most he could expect is a few slaps on the wrist for scattered poll workers or state-level officials. Joe Biden's margin is too large for a few thousand invalidated votes to make a difference. The campaign's only real bet would again be putting the choice of electors in the hands of the Republican-controlled state legislature, on the grounds that it is now impossible to isolate legally cast ballots from a (totally hypothetical) pool of fraudulent ones. I don't see it.

Meanwhile in Nevada, where the campaign is claiming that at least 3,000 ballots were cast by non-residents, Biden's lead stands at around 20,000 votes with the majority of ballots left to count reportedly coming from Democratic-leaning Clark County. What exactly Trump is hoping for remains unclear. But without victories here and in Michigan, even the most favorable ruling in Pennsylvania would not change the outcome of the election, unless Trump also wins in Arizona, where the closest thing to election-related shenanigans hinted at so far is the use of Sharpie markers. As far as I can tell, he needs to win Arizona outright if he is going to bother fighting on in Pennsylvania.

My question is whether he will bother fighting anywhere. What stands between Trump and a second term is a legal battle that would make Bush v. Gore look like a day in traffic court. The president who mumbled through his prepared remarks on Thursday night sounded tired. He spoke without enthusiasm about the supposed crimes of his political enemies, hinted at the perfidy of election officials, alluded vaguely to the possibility of legal remedy for these offenses, and with an almost sublime indifference affirmed his own victory, not as a future prospect but as a historical fact already being ignored.

Somebody needs to keep this drowsy emperor awake.

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