But as the electoral map continues to turn against Trump, so, too, do his chances of overturning the result with lawsuits — even with what he thinks will be an exceedingly compliant Supreme Court.
As of Friday morning, Biden has edged ahead in both Georgia and Pennsylvania, with the latter especially looking close to a done deal for Biden. It alone would put him over the 270 electoral votes he needs. But Biden also leads in Nevada and Arizona, the latter which has been called by some news organizations for Biden. In other words, Biden appears favored to win four of the five remaining key states, with Trump favored in North Carolina.
Winning those four states would mean Biden would win the electoral college 306-232 — exactly the margin by which Trump won in 2016.
Back then, Trump tried to label that outcome a “landslide,” despite losing the popular vote and carrying the decisive states all by less than one point. But even that dubious claim is relevant today. This would be a sizable electoral college victory for Biden, and it would make legal challenges significantly more difficult. That’s because results would have to be overturned in multiple states — unlike, say, in 2000, when the legal fight in just one state, Florida, determined the winner between George W. Bush and Al Gore.
If Biden wins those four states, Trump would effectively need to overturn at least 37 electoral votes in close states to change the outcome. And he couldn’t get to that 37 electoral votes without overturning the results in at least three states.
Here are the closest Biden states right now (i.e. the ones where a result could plausibly be overturned) along with how many electoral votes they have:
- Georgia — less than 0.1 percent (16 electoral votes)
- Pennsylvania — 0.3 percent (20)
- Wisconsin — 0.6 percent (10)
- Nevada — 0.9 percent (6)
- Arizona — 1.6 percent (11)
Wisconsin’s vote count is done, so that’s a final margin. Biden’s leads in Nevada and Pennsylvania, though, are expected to grow, given where the remaining votes are coming from — potentially to well more than 1 percentage point in each. Biden’s lead could also grow slightly in Georgia, though there are 8,000 ballots left to count, so the final margin will be razor-thin. And Arizona is the one state in which Trump is currently gaining ground, which means that could be very close, as well.
If Pennsylvania winds up being decisive, as analysts currently believe it will, Trump would need to overturn the results in three of the other states just to get to a tie, and four of them to get to a win.
The closest states would then be Georgia, Wisconsin and Arizona, with all of them potentially decided by less than one percentage point. Combined, they have 37 electoral votes — exactly the number Trump would need to overturn to make the race a 269-269 tie. He would also need to overturn Nevada to get to a majority of electoral votes.
The math becomes easier if Pennsylvania could somehow be overturned, but Trump would still need the results in at least two more states to also be overturned.
And there really aren’t places to fight beyond the five states above. Aside from them, the closest state in which Biden leads is Michigan, where the margin is 2.6 points — about 150,000 votes.
From there, the question becomes how Trump could even overturn the results in all these states. Georgia’s top election official says that state is headed for a recount, and others could do that, too. But such recounts rarely overturn results and generally move a few hundred votes, rather than tens of thousands.
As The Fix’s Amber Phillips has written, recounts have changed the winner after election night — but only when the margin was exceedingly close. The hard-fought 2008 Minnesota Senate recount, for instance, wound up changing the final margin by about 500 votes. The lengthy 2004 Washington gubernatorial recount changed the margin by about 400 votes.
The other big example of a recount mattering was in the 1974 New Hampshire Senate race, when the margin shifted about 350 votes, and it wound up so close that they held a redo election.
One of the states Trump would need to overturn, Wisconsin, already has plenty of experience with recounts, with its presidential races having been close enough for them in 2000, 2004 and 2016, as well as a state Supreme Court recount in 2011 and a gubernatorial recount in 2018. But the latter two shifted about 300 and 131 votes, respectively, as the loser of that 2018 gubernatorial race, former governor Scott Walker (R), noted Wednesday.
“If it holds, 20,000 is a high hurdle,” Walker said of Biden’s margin in his state, which still holds two days later.
Much more likely is that the Trump campaign would need to get tens or even hundreds of thousands of mail ballots cast out across multiple states. It has done little to enunciate how exactly it might contest those ballots, though.
One fight could be in Pennsylvania over ballots mailed by Election Day but received in the three days afterward. (The Supreme Court declined to grant a temporary halt to counting such ballots before the election, but it could be taken up again.) Even that, though, could very well be insufficient if Biden’s margin grows substantially.
The Trump campaign has also claimed (dubiously and without substantiation) that some mail ballots in Nevada were cast by nonresidents or dead people, but even that number is just in the thousands — with Biden’s lead at more than 11,000 votes and likely to grow.
If this just came down to one state, the path to legal victory would be significantly more plausible, even without a true strategy yet established. Getting even a friendly Supreme Court to effectively overturn the results in three or four states would be significantly more difficult for the justices to ever do in good faith, unless there were somehow a legal argument that applied to all of the states. But, given that each state handles its elections differently — for example, the other states besides Pennsylvania don’t accept any mail ballots received after Election Day — that would be an extremely tall order.
It has long been said that Democrats wanted a resounding victory to foreclose any legal challenges the Trump campaign could throw at them. It’s not as resounding as Democrats hoped, but the number of states involved appears to be giving them plenty of cushion if the Trump campaign does mount some kind of coherent strategy — which, it bears emphasizing, is very much in doubt at this point.