This is not Bush v. Gore


Face it folks, Donald Trump will not be president come January 20. This is not Bush v. Gore. 

In Bush v. Gore, the candidates were separated by barely 1,000 votes in a single state. Trump, in contrast, has lost the electoral college by tens of thousands of votes across several states: Wisconsin, Michigan, Pennsylvania, Georgia, and as of right now, Arizona. 

And yet, many Trump boosters, including intelligent and formerly respectable conservatives such as Newt Gingrich, are making the rounds insisting that Biden’s leads are the result of voter fraud. Gingrich says that Republican poll-watchers have been denied access to the locations where ballots are being counted. This is demonstrably false. 

Lawyers on television are debating whether President Trump can reverse his electoral fortunes in court. Instead of thoughtful legal analysis by expert lawyers, we are hearing and seeing mostly wishful thinking by partisans. Those who want Trump to win tell the public that he may win. Those who want him to lose assure the public that he has no chance.

The great Supreme Court Justice Oliver Wendell Holmes Jr. defined the role of the lawyer as predicting, in fact, what the courts will decide. So here is my completely objective, nonpartisan, non-ideological, expert prediction as to how the courts will likely resolve the multiple lawsuits being bought by President Trump and his team of lawyers.

He may well win his legal challenge in Pennsylvania to write-in ballots mailed before the end of Election Day but received over the subsequent three days. Justice Samuel Alito, who oversees the federal judicial circuit that includes Pennsylvania, has already signaled the Supreme Court‘s interest in that issue by ordering all of these ballots to be counted separately and segregated. Although Pennsylvania’s Secretary of State apparently was doing this already, the order from Justice Alito made clear that there are at least some other justices who might be ready to discount those votes, based on Article Two of the Constitution.

Article Two provides that the legislatures in each state must determine the rules for selecting electors for the Electoral College. But it was the Pennsylvania Supreme Court, rather than the legislature, that extended by three days the time for receiving and counting mail-in ballots. That may have been a sensible decision, especially in light of COVID-19 and the problems with mail delivery. But, according to President Trump’s lawyers, the state supreme court simply lacked the constitutional authority to alter the legislative rule requiring ballots to be received before the end of Election Day.

Twenty years ago, in the case of Bush v. Gore, a 5-4 majority voted, along strictly partisan lines, to stop the count ordered by the Supreme Court of Florida. That decision was based, in part, on Article II. It is likely, therefore, that an even more partisan current court might well side with President Trump on this issue.

The question remains, however, whether a decision in favor of President Trump on these challenged mail-in ballots would make a difference in the outcome of Pennsylvania’s presidential tally. If former vice president Joe Biden has won the state by a margin in excess of the challenged votes, then a Trump victory on Article II grounds will be pyrrhic: Biden’s margin of victory would be smaller but he would still carry the state. If the high court is uncertain whether a decision to discount challenged votes would, in fact, change the outcome, it may well decline to intervene. There also will be challenges in Nevada, Arizona, Georgia, Michigan, and perhaps other states narrowly won by Biden. These lawsuits will be even more difficult for the Trump legal team.

The Pennsylvania lawsuit is a “wholesale” challenge to a large number of votes counted in violation of state legislation. Because that lawsuit is based entirely on a matter of constitutional law, it requires no evidence and no trial. It was already before the high court, which previously divided 4-4 on the question. All that is required now is further briefing and a constitutional decision.

The challenges in other states are “retail” in nature. They involve challenges to particular votes, to specific practices and to local rules. For them to prevail would require presentation of evidence, which would likely be contested by the other side. These retail challenges will be messy and will take time. In order to prevail, they too would have to show that there were enough disputed votes to make a difference in the outcome of the election in a given state. That will not be easy to do.

In the end, for President Trump to reverse the outcome of the election, he will have to demonstrate that there were enough invalid votes in enough states to give him the 270 electoral votes required for victory. Turning around the results in any given state – even Pennsylvania – will not accomplish that. He will need to prove a difference in outcome in several states, that number depending on which states, if any, he wins in court, and how many electoral votes they have.

This is a daunting, uphill and unprecedented challenge. In Bush v. Gore, all that George Bush had to do was to bring Florida into his “win” column, and he could do that as a matter of wholesale constitutional law rather than retail evidentiary challenges. So Bush v. Gore serves as an imperfect and only partial precedent for current cases.

Challenging election results, even by demanding recounts or bringing lawsuits, is part of the democratic system of elections, so long as the ultimate loser accepts the results and concedes defeat, as Al Gore did in 2000. So President Trump and his legal team should not be condemned, as they have been by many pundits, for exhausting their legal and political remedies. Once these remedies are exhausted, the American way demands that the loser accept the legally mandated outcome.

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