WASHINGTON — One month and dozens of failed election challenges since Nov. 3, President Donald Trump and Republicans have not persuaded any judge to invalidate a significant number of ballots, let alone flip a state that President-elect Joe Biden won — and they’re running out of time.
Trump has vowed to press baseless allegations that the election was tainted by widespread fraud — his campaign filed another round of legal challenges in Wisconsin on Thursday — but his own lawyers have acknowledged that they’re up against a narrowing window. A key date in the federal election timeline next week will make it even harder for Trump and his supporters to convince any court to take dramatic steps that would upend Biden’s victory.
Tuesday marks the “safe harbor” deadline — the date when states must certify results if they want protection under federal election law against Congress stepping in to decide which candidate gets their electoral votes. The fact that lawsuits are pending won’t prevent states from getting the benefits of certifying results by that date, according to election law experts. Judges are already wary of injecting legal uncertainty into the election and causing chaos and will be even more reluctant to do so after the deadline passes.
“The doors close significantly after the safe harbor deadline passes,” said Rebecca Green, co-director of the Election Law Program at William & Mary Law School. “It’s going to be a heavy lift to convince a judge to defy federal deadlines. I think it would only happen or be successful if some kind of wild evidence of just unbelievable scale were unearthed that was credible.”
Trump’s campaign has conceded that the Dec. 8 deadline is key to the fate of its legal challenges. It has pushed courts to rush to consider cases by then. In the campaign’s failed constitutional challenge to Biden’s win in Pennsylvania, Trump’s lawyers argued on Nov. 22 that it was “critically important” for a federal appeals court to hear the case before the deadline, which at that point was 16 days away. The court agreed to expedite the case and ruled against Trump in a 3–0 decision just five days later.
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Trump’s campaign has focused its attention more recently on Wisconsin. On Dec. 1 — one week before the safe harbor deadline — it attempted to skip the lower courts and bring a challenge to hundreds of thousands of absentee ballots in Milwaukee and Dane counties (the state’s largest and most racially diverse counties) directly to the Wisconsin Supreme Court. On Dec. 3, the court ruled 4–3 that the campaign couldn’t jump ahead and had to go through the standard appeal process.
The campaign quickly filed appeals in county circuit courts later that day and sent a letter requesting a fast timeline “to avoid any delay.” Trump’s lawyers wrote that “given the time limitations inherent in the election for President,” they were prepared to submit all briefs and evidence by Dec. 7.
Judges can still rule on election challenges after Dec. 8, or even after Dec. 14, when the Electoral College votes. The federal Electoral Count Act accounts for situations where there are competing slates of electors — if, for instance, a state certified results by the safe harbor deadline, but a court later invalidated those results and ordered a different slate of electors to be sent to Congress.
But election law experts who patiently gamed out for BuzzFeed News all the hypothetical legal paths that Trump and his supporters could pursue between now and Biden’s inauguration on Jan. 20, 2021, stressed that such scenarios were extremely unlikely.
Justin Levitt of Loyola Law School said that for any court to consider the extreme step of invalidating election results at this stage, a case would need to present a “real meaningful question” about whether ballots were invalid and at a scale that would change the outcome. The remaining cases brought by Trump and Republican challengers — which he described as “factually inaccurate,” “grotesquely implausible,” and “fishing expeditions” — did not come close to meeting that bar, he said.
Green said it was a “strong-slash-insurmountable burden” for an election challenger to convince a court to undo results after a state had certified them and the safe harbor deadline passed.
Green said it was possible Trump was hoping to use these court fights to angle for a political solution — for instance, to convince members of Congress to reject slates of electors in states that Biden won. Alabama Rep. Mo Brooks said this week that he would challenge the Electoral College vote, garnering a “thank you” tweet from Trump.
But for that to work, Trump would have to convince both chambers of Congress to reject the results, an extremely unlikely scenario, particularly in the Democrat-controlled House. If the House and Senate split, the Electoral Count Act says that Congress goes with the slate certified by a state’s governor — putting Trump back where he started in the swing states that went for Biden. Even if Trump managed to undermine Biden’s win in one state, he’d have to do that for multiple states to get enough electoral votes to win.
“It’s long shot upon long shot,” Green said.
The latest round of lawsuits filed by Trump’s campaign and, separately, by legal teams led by attorney Sidney Powell (whom the Trump campaign disavowed) are rooted in sweeping, unsupported theories of widespread fraud. Cases raising similar claims have failed so far, either because judges didn’t find the allegations credible or because Trump and GOP challengers failed to satisfy baseline requirements for bringing these cases before they could get to the merits.
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Trump and Republicans lost a flurry of cases in Pennsylvania that didn’t allege fraud and instead challenged specific clusters of absentee ballots — a situation more similar to the recount mess in Florida in 2000 that led the Supreme Court to step in. The one win they scored in those cases failed to make any dent in Biden’s lead in the state.
A federal judge tossed Trump’s constitutional challenge to the results in Pennsylvania, and the campaign failed to convince an appeals court to let them try again. As of publication time they hadn’t filed a petition in the US Supreme Court, notwithstanding pledges by Rudy Giuliani and campaign legal adviser Jenna Ellis that the case would end up there.
An effort in state court by Republican Rep. Mike Kelly and other Republican challengers to invalidate Pennsylvania’s results has failed so far, too. In a lawsuit filed weeks after the election, they challenged a law passed by the Pennsylvania legislature in October 2019 that expanded mail-in voting. The state Supreme Court rejected it, finding Kelly and his co-challengers waited too long to file suit. On Dec. 3, the court denied their request to put the ruling on hold so they could go to the US Supreme Court.
Kelly and his co-challengers did petition the US Supreme Court this week to stop state officials from taking any more steps to finalize Biden’s win in advance of the Electoral College vote. On Dec. 3, Justice Samuel Alito ordered the state to respond by Dec. 9, one day after the safe harbor deadline — a scheduling decision that constitutional law scholars took as a sign that the court was not inclined to upend the state’s certification of Biden’s win.
In Michigan, the Trump campaign is appealing the dismissal of a lawsuit that alleged poll watchers in Wayne County, which covers Detroit, were denied access to observe ballot-counting. In a brief filed last week in the Michigan Court of Appeals, the campaign argued for an order declaring that Michigan officials improperly managed the election and that would make clear what’s required in future elections — but not to undo Biden’s win. There’s a separate case pending brought by Republican poll watchers seeking an audit of the results in Wayne County; they’d previously sued, unsuccessfully, to stop the county from certifying its results.
In Wisconsin, the campaign has a case pending in federal court that’s separate from the appeals it filed on Dec. 3 in Milwaukee and Dane counties. The federal lawsuit, filed Dec. 1, accuses state election officials of unconstitutionally going against the wishes of the state legislature in how they managed mail-in voting this year. The campaign is asking the court to declare that the Wisconsin election was unconstitutional, to direct the legislature to decide what to do, and to block “any actions inconsistent with the Court’s declaration and judgment.”
The pending cases in Wisconsin offer examples of how US election law allows for the possibility of legal fights that extend past the safe harbor deadline or the Electoral College vote. If, for instance, Trump’s appeals in Milwaukee and Dane counties didn’t wrap up before Dec. 8, Levitt said that could mean Wisconsin wouldn’t get the benefit of “safe harbor” for the results — a Biden victory — that Gov. Tony Evers already signed off on.
That wouldn’t guarantee Trump would win Wisconsin, however — it would be up to Congress. If the Wisconsin Supreme Court ultimately upheld Biden’s win, he said, it’s unlikely Trump could convince Congress to reject that result. There are already signs that Trump doesn’t have the votes on the Wisconsin court to invalidate ballots. Three justices dissented from the Dec. 3 order kicking the campaign’s challenges to the lower courts, but two of those justices made clear that even if they agreed that Wisconsin election officials violated state law, striking ballots “may be out of reach.”
What exactly state and federal courts would have the power to do after the safe harbor deadline passes or after the Electoral College votes also isn’t clear, since it’s a largely untested area of federal election law. In 2000, the Supreme Court issued its decision in Bush v. Gore on Dec. 12, which was the safe harbor deadline that year. A majority of the justices gave significant weight to the Florida legislature’s intent to meet that deadline and halted a recount that would have gone past it, which meant George W. Bush won the state and the presidency.
Aside from Trump’s federal case in Wisconsin, Powell has lawsuits pending in federal courts in Georgia, Arizona, Wisconsin, and Michigan on behalf of Trump supporters. Powell joined Giuliani and Ellis at a press conference last month and appeared to be part of the campaign’s legal team, but the campaign later released a statement distancing itself from her. Her lawsuits, all filed in the past week, allege baseless conspiracy theories of vote tampering and fraud on a national scale. No court has ruled on the substance of her cases yet, but judges have identified procedural problems so far and a judge in Georgia did not grant her request for an immediate order to inspect voting machines.
Levitt said that even if Powell could convince a federal judge that the election was tainted by fraud — he repeatedly stressed that he did not think that would happen and described the lawsuits as “garbage” — she would still face an uphill battle to alter Biden’s win if the safe harbor deadline had passed.
If a federal court ruled after the upcoming deadlines that a state violated the law in how it managed the election, it’s unlikely the court would issue an order forcing a state to take a particular action, Levitt said. Instead, the court would likely declare that what state election officials did was unlawful, and it would be up to Congress to decide if that was grounds to reject that state’s slate of electors.
To date, there is no groundswell of Republicans in Congress who have signaled an interest in testing the constitutional limits of the federal election process based on what Trump and his allies have put forward. No Republican state lawmakers have moved to take control of the process of selecting electors; a group of 75 GOP lawmakers in Pennsylvania signed a letter on Friday urging their congressional representatives to object to the results, after declining to take action themselves, the Philadelphia Inquirer reported.
“Unless credible evidence emerges that is of a scale great enough to change the picture, I really believe that there won’t be enough … people who are willing to risk their reputation, barring real evidence, to change the outcome of the election,” Green said. “It’s not a close election. It’s too great a lead.”