It is also a bad idea, as a general matter, to object to election law litigation: In two years, or four years — and possibly in two months in Georgia — the shoe may be on the other foot. It would look hypocritical to condemn the very idea of challenging an election result now, only to turn around and do so in different (albeit more legitimate) circumstances.
Let’s start with the merits, or lack thereof, in Trump’s suits. Keep in mind that Biden’s leads keep growing (or at least remain stable) as each state finishes counting provisional, military and overseas ballots. Not only has his national lead grown to more than 5 million votes, but Biden also now has a 53,000-vote lead in Pennsylvania (the state that pushed him over 270 electoral votes), and the gap stands to widen. (Trump won the state in 2016 by 44,000. Pennsylvania’s legally questionable late-arriving ballots totaled only 10,000, and are irrelevant.)
Biden’s leads in Georgia and Arizona remain steadily over 12,000, taking him up to 306 electoral votes. To make a difference, any fraud claim would have to involve not merely isolated cases of shady behavior but a massive criminal conspiracy affecting possibly tens or hundreds of thousands of votes.
So far, the Trump campaign has not even presented plausible isolated instances of fraud; it’s been spuriousness all the way down. The campaign dropped a baseless suit claiming that voters who used Sharpies to fill out ballots in Arizona did not have their votes counted. A federal judge rejected the campaign’s false and misleading complaints that some Philadelphia jurisdictions did not admit Republican poll observers. A judge dismissed a suit over the handling of ballots in Georgia — involving one witness wondering about 53 votes — in a one-sentence ruling.
Examples of alleged fraud that are spreading on social media are also getting knocked down — although not always yet in court. CNN spot-checked 50 names from a viral list of 14,000 dead Michiganders who supposedly “voted” for Biden. The results: 37 of the people were dead and cast no vote; five are alive and voted; and eight are alive and didn’t vote.
That example, in particular, shows why litigation could be so important in 2020. In an era rife with misinformation, conspiracy theories can either fester online — or they can be presented and evaluated in court. As Justice Louis Brandeis once wrote, “Sunlight is the best disinfectant” (a concept Trump apparently applies to the coronavirus). Another famous legal thinker, John Henry Wigmore, put it this way: “Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” That’s an overstatement, but Wigmore would have agreed that cross-examination is better than Facebook.
The claims have been fictional, but the conspiracy theories and visceral skepticism are social facts. Court cases won’t eliminate bad-faith doubts, but litigation may be the best way to overcome widespread skepticism of government officials, because it is transparent and readily scrutinized. It will be hard to blame unfavorable outcomes on a supposedly biased media, too, because court proceedings and judicial rulings can be read directly by the public.
In federal courts, complaints must be based on demonstrable facts, or they get dismissed, and judges can sanction and fine parties for misrepresentations. State courts have similar rules. And of course, people making allegations face the risk of perjury. Trump’s lawyers will have to put up or shut up.
We may already be seeing the deterrent effects of legal penalties: When pressed by a Pennsylvania judge whether a dispute over 592 ballots involved fraud, Trump’s lawyer retreated and replied, “To my knowledge at present, no.” A Pennsylvania postal worker this week suddenly recanted a tale about supposedly backdated ballots, perhaps realizing he would have to make the claim under oath.
One may worry about the Trump appointees on the bench, with memories about Bush v. Gore lingering in the mind. But it is crucial to note how different this election is from 2000. The margins in each state Trump is contesting — each a separate path for Biden to 270 electoral votes — are far more than the hundreds of votes on which Florida, the pivotal state in that race, turned. And in truth, Florida was a mess on both sides, with Al Gore’s campaign cherry-picking its four best counties, and with those counties adopting questionable approaches to counting paper “chads.”
The Bush v. Gore decision was flawed, but it does not help to exaggerate those flaws. It is reasonable to ask if federal judges today are biased and partisan — but they clearly aren’t insane. They know that embracing conspiracy theories would annihilate their legitimacy.
The problem goes beyond Trump: Republicans have been making baseless claims about election fraud for years (even though some prominent party members, such as election lawyer Ben Ginsburg, have admitted that there is no evidence of such activity). Knocking down the Trump litigation can be a first step toward pushing back against this cynical tactic.
It’s not wrong for a defeated candidate to pursue every available legal avenue. Imagine if Biden had lost a handful of states by tens of thousands of votes, and there was suspicion that Trump’s appointees to the U.S. Postal Service “misplaced” or delayed hundreds of thousands of mailed ballots. In that case, litigation would be a civic duty. There would be no honor in Biden quietly capitulating. In order not to foreclose such options in the future, Democrats should rein in their attacks on suits over electoral outcomes, even when the claims are outlandish.
The tables may be turned sooner than many expect — in Georgia, in a pair of runoff elections in January, with control of the U.S. Senate in the balance. Recall that in the 2018 race for Georgia governor, Brian Kemp (R) defeated Stacey Abrams (D), and valid questions about voter suppression arose. Now Sen. David Perdue (R), who faces Jon Ossof (D), and Sen. Kelly Loeffler (R), who faces Raphael Warnock (D), have called on Georgia’s secretary of state to resign — apparently because too many voters participated this month. They are not just “working the refs.” They are inviting voter suppression, and Democrats should be prepared to litigate.
Instead of reflexively condemning Trump’s lawsuits, Democrats should thank him for the opportunity. At last, Trump’s campaign will have to do something everyone in Trump’s orbit always tries to avoid: answer tough questions, with legal consequences, and confront hard evidence contradicting their boss’s spin.