Hoping to block Democrat Joe Biden’s path to victory, incumbent President Donald Trump is mounting a high-stakes, multi-state legal campaign to challenge votes and voting processes. Could this strategy succeed, allowing Trump to hold on to the presidency?
It could — but probably won’t, says Erwin Chemerinsky, dean of the UC Berkeley School of Law. In an interview today (Friday, Nov. 6), he said it’s unlikely that the election will end with a repeat of the 2000 election, when the U.S. Supreme Court awarded victory to Republican George W. Bush.
Chemerinsky acknowledged that Trump’s challenge to extended voting deadlines in Pennsylvania could find a forum at the high court. But, he explained, Biden’s relatively large margins in Pennsylvania and elsewhere will make it difficult for Trump to reverse the outcome through legal action.
Throughout his career as a businessman, television star and politician, Trump frequently has used the courts as a battlefield. He and his businesses have been party to over 3,500 lawsuits on a range of issues, and he has used legal action for a variety of purposes, from advancing financial interests and defending himself against attacks to intimidating opponents.
Already Trump has taken or threatened legal action in key battleground states such as Pennsylvania, Wisconsin, Michigan and Georgia. Most of the actions have focused on allegations that ballots were improperly cast or tallied; in Michigan and Georgia, such cases have been dismissed for lack of evidence.
[The interview below has been lightly edited for length and clarity.]
Berkeley News: Generally, how would you characterize the president’s post-election legal efforts or legal campaign?
Erwin Chemerinsky: Throw all the spaghetti against the wall, and see if anything sticks. Challenge everything he possibly can, everywhere. So far, it seems a very weak strategy. With the possibility of Pennsylvania and the U.S. Supreme Court, there don’t seem to be any strong legal arguments.
What legal challenge in Pennsylvania might be sufficient to advance his case in the court system, even to the U.S. Supreme Court?
The best way for me to answer is this: There are three sets of legal challenges. The first is with regard to Pennsylvania. The argument there is that Pennsylvania law says that absentee ballots can be counted if they’re received by 5 p.m. on Tuesday, Nov. 3rd. The Pennsylvania Supreme Court, using the right to vote under the Pennsylvania Constitution, extended that to ballots received by 5 p.m. on Friday, Nov. 6.
There is an argument that the Pennsylvania Supreme Court can’t do that under the U.S. Constitution, that only the Legislature can set the rules. And several weeks ago, the U.S. Supreme Court split 4-to-4 on that question, and that was before Amy Coney Barrett (was installed as the ninth justice).
Now, this will matter if Pennsylvania is the deciding state, if the votes received between Nov. 3 and Nov. 6 make the difference in the outcome. If Pennsylvania isn’t necessary to Biden because he carries Georgia or Nevada, or those votes received between Nov. 3 and Nov. 6 don’t change the outcome, this challenge won’t matter.
The second set of legal challenges is: Every state provides for a recount procedure, if the outcome is below a certain threshold. And already, Trump has said he’s going to seek a recount in Wisconsin and, assuming he loses in Georgia, that could lead to litigation. Obviously, it’s too soon to know. But that’s the procedure that led to the litigation that ultimately resulted in Bush v. Gore in 2000 (Vice President Al Gore was the Democratic presidential nominee).
The third set of legal challenges are just what I can only put as small lawsuits, like in Michigan and Pennsylvania, that they weren’t letting the Republican observers get close enough to the ballot counters, or in Georgia, allegations that 20 late ballots had been counted. So far, those cases have all been dismissed.
You seem to be saying that Trump does have an avenue to the Supreme Court, potentially. What’s the greatest difficulty that his campaign would face in the Pennsylvania case?
It’s pending now in the U.S. Supreme Court. The state filed its brief at 5 p.m. Eastern time yesterday. It’s a very disputed legal theory. But we know these four justices on the court will accept it and four who likely will reject it. And we don’t know where Amy Coney Barrett is.
Before the election, the campaign had filed a number of legal actions to affect voting — in essence, to limit voting. Should we see the latest legal actions as an extension of the Republicans’ vote suppression strategy?
Yes. The Trump position has been, all along, that the fewer absentee ballots that are counted, the better. So, they tried before the election to limit absentee ballots, and they’re trying now to keep absentee ballots from being counted.
Regarding Pennsylvania and other states, the Trump campaign has made comments that suggest the courts are political bodies that make political decisions. Is that going to be an effective assumption for them?
There has to be a viable legal argument in order to have a chance of success. I can’t deny the courts often see things from a political perspective.
Bush v. Gore was a 5-4 decision, very much tracking the ideology of the justices. And the 4-to-4 split by the Supreme Court a couple of weeks ago, on the Pennsylvania matter, had the four most conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — taking the Republican position and John Roberts, Stephen Breyer, Sonia Sotomayor and Elena Kagan taking the Democratic position.
But that doesn’t mean the courts are going to accept frivolous arguments and just be political.
You’ve mentioned Bush v. Gore, the legal case that decided the 2000 presidential election after an extremely close outcome in Florida. Are we looking at the possibility that the courts will determine the 2020 outcome, as they did 20 years ago?
Maybe. But at this point, it doesn’t seem likely.
In Florida, there were several hundred votes out of 6 million cast that decided the outcome, and how the courts resolved that was going to determine the election.
At this moment — and I emphasize at this moment — it looks like Biden is going to carry Pennsylvania by a large enough margin that legal challenges aren’t going to matter. And, of course, if Biden carries Pennsylvania and Georgia with a sufficient margin, regardless of what happens in Arizona, that makes it unlikely the courts are going to decide the election.