Trump would need to overturn Biden’s apparent victories in three states to take Biden below 270 electoral votes. In Pennsylvania, where Trump’s main claim is about being denied the right to observe the process as closely as his campaign wished, no court is going to invalidate votes for that alleged procedural failure alone.
There would need to be proof of actual unlawful ballots cast as a consequence of the procedural lapse. Moreover, the proof would have to show that the unlawful ballots made a difference in which candidate won. Demonstrating that requires not only more unlawful ballots than Biden’s lead (now nearly 49,000 in Pennsylvania) but enough invalid ballots cast for Biden to erase that lead.
Assuming that invalid ballots favored Biden at an 80-20 ratio, there would need to be almost 85,000 unlawful votes to overcome a 49,000-vote margin. But courts aren’t willing to just make such assumptions. They require actual evidence, which Trump has not produced.
Trump’s proof problems are even greater elsewhere.
What if renegade judges do something crazy, or what if the litigation just delays certification of the popular vote long enough to prevent appointment of pro-Biden electors based on the popular vote? We can hypothesize such nightmarish scenarios, but also adequate antidotes: The Biden electors simply need to meet on Monday, Dec. 14, and send their electoral votes to Congress.
Second, Attorney General William P. Barr has contravened long-standing Justice Department practice by permitting investigations of election fraud before states complete the counting of votes. This is more norm-busting, yet without likely consequence. Barr professes “the Department’s absolute commitment to fairness, neutrality and non-partisanship.” But for the Justice Department to subvert vote-counting still underway when Barr’s White House boss is trying desperately to cling to power would send just the opposite message.
At least Barr says the department won’t act without enough wrongdoing “to impact the outcome of a federal election in an individual State.” Since this doesn’t exist, that should end the matter. Even so, no court should, or likely would, permit Barr’s move to prevent a state from finishing its work in time to appoint the state’s electors. If that were to happen, the state’s governor could certify appointment of electors based on what the popular vote would have been absent Barr’s interference.
Third, it’s disappointing, to say the least, that more Republicans — in particular, more Republican senators — haven’t acknowledged that Biden won the election. But that reticence is unlikely to persist, and even if it does, it won’t affect the outcome.
That’s because Biden has passed a magic number — not 270, but 50: that is, 50 votes in the Senate to officially declare him the winner when Congress meets in a special joint session on Jan. 6.
The number is 50, not 51, because one of the two Georgia Senate seats will be empty on Jan. 6 — the runoff to fill that seat is being held just the day before. The other Georgia Senate seat, although also in a runoff, involves a special election for an unexpired term; as a result, Sen. Kelly Loeffler will still be a sitting senator on Jan. 6.
So, Biden needs 50 of 99 Senate votes for any electoral college question that might arise. Voting that day will be 48 Democrats and 51 Republicans.
That Republican majority shouldn’t be a problem. Four GOP senators have congratulated Biden as president-elect: Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah) and Ben Sasse (Neb.). Even if Sen. Kamala D. Harris (Calif.) were to recuse herself to avoid voting in favor of her own election as vice president, Biden would have a vote to spare.
Don’t forget also: If for some strange reason the GOP moderates go wobbly, Michigan, Nevada, Pennsylvania and Wisconsin will count for Biden because the governors of those states will have certified Biden’s electoral votes. Federal law requires this gubernatorial certification to prevail if the House and Senate split. With these states, Biden is still above 270.
There is one remaining nightmare scenario: that Vice President Pence, as presiding officer in the Jan. 6 joint session, will attempt to override the result required by the Electoral Count Act. This is unthinkable; it would be the definition of despotism for Pence to put himself, and Trump, back in power when both the Senate and House recognize Biden’s lawful claim.
It also won’t happen. By then, Trump’s litigation should have played itself out. The reality of Biden’s election will have become evident to — and more important, publicly acknowledged by — Senate Majority Leader Mitch McConnell (R-Ky.) and enough of his colleagues that Pence, if tempted, would not dare to try to pull off this stunt. After all, he imagines a political future for himself.
Worry about the doubts that Trump has been sowing among his supporters about whether Biden has been legitimately elected. Don’t lose sleep about who will take the presidential oath on Jan. 20.