On a recent episode of Amicus, Dahlia Lithwick spoke with election law expert Rick Hasen about the results of the presidential election and Donald Trump’s feeble legal attempts to overturn the results. Read a portion of their conversation, which has been edited and condensed for clarity, below.
Dahlia Lithwick: Are there any pathways left that you can see for Trump to take the Electoral College?
Rick Hasen: To the extent Trump is looking for a litigation path to try to reverse the outcome of the election, it’s extremely unlikely. And I think that’s true for three reasons. First, if it doesn’t come down to a single state, even if there were a problem in a state—say, Georgia goes to a recount—that wouldn’t be decisive for the outcome. It’s not a one-state margin.
The second is, even within a state, if it came down to a particular state, you’d have to have some theory as to why the election might be overturned. So if, for example, in Pennsylvania, even if there’s a dispute about the late-arriving ballots, which was an issue that went to the Supreme Court a couple of times before the election, if those ballots are not decisive, that’s not going to change the election outcome.
Which brings me to the third point, which is that, so far, Trump’s legal team has come up with basically nothing of substance. Most of the cases are: We want observers a little closer in the rooms where they’re counting the votes, or we think that some illegal votes were counted, and we’ve got a bunch of cases of fraud. So far, in those cases, they’ve produced no evidence of that. There was the case in Georgia the judge rejected. There’s a case now filed in Nevada where the complaint provided no evidence. It really doesn’t seem that there is a viable legal strategy to get a case to the courts that could plausibly serve like a Bush v. Gore in Florida, where it was so close that there was the potential for the election results to flip.
Can you just unpack, briefly, the recounts, because some of these states have margins within which a recount is mandatory? I gather the Trump campaign has asked for a recount already in Wisconsin. All of that is, in one sense, perfectly normal. This is the system working. Is there anything to watch for in the states that are going to start to engage in recounts?
I don’t think they’ve actually asked for the recounts in Wisconsin formally, because you can’t request it until the votes are certified, which hasn’t happened yet. There’s about a 20,000-vote margin right now in Wisconsin, and we’ve never seen a statewide recount that’s flipped anywhere near that number of votes. Statewide recounts generally fail. The average number of votes that change in a statewide recount is 282, according to a study by FairVote. You’re not going to change an election outcome that’s 20,000 votes apart, absent finding some massive problem in how the election was conducted. And there’s been no evidence of any problem in how Wisconsin or any of the states have run their elections. You’ll find a small problem here or there, but to overturn an election, you’d have to have some kind of massive failure. And fortunately, we didn’t have that. Some of the nightmare scenarios that we talked about, like a cyberattack that knocks out the power in a city in a swing state, didn’t happen, and so fortunately the election went off much better than it could have in a pandemic. And so trying to use a recount or something to attack a clean election is unlikely to succeed.
You talked at the very top about these lawsuits that are being filed, seemingly willy-nilly. In Michigan, they actually filed in the wrong court. In one of the Pennsylvania suits this week, the judge wasn’t even clear what the relief was that they were seeking. This just is not the A-team, right? This is not James Baker and Ben Ginsberg and serious election lawyers going in. It all seems to be masterminded by Pam Bondi and Rudy Giuliani. When you and I have been talking the past few weeks about the possibility that this ends in the courts, we anticipated that this would be done by serious lawyers bringing serious claims. What does it signal that the conservative legal establishment has just utterly washed their hands of this enterprise?
It’s worth contrasting what is happening with the suit that went to the Supreme Court twice already on the late-arriving ballots in Pennsylvania with all of these other lawsuits. There was an effort, before the election, to try to roll back a change that the Pennsylvania Supreme Court ordered, which extended the deadline for the receipt of ballots by mail in Pennsylvania from Election Day at 8 p.m. to 5 p.m. on Nov. 6, a three-day extension. It was an argument about this potentially being the state Supreme Court taking power away from the state legislature to set the deadlines. And that case was seriously litigated. The Supreme Court weighed in on it twice. You had serious lawyers on both sides. And if in fact Pennsylvania came down to those votes, we could imagine a world in which the A-team would come out and litigate that stuff. But, all of the other lawsuits that we’ve seen so far, you don’t have the Paul Clements coming out. You don’t have the Ted Olsons, the top-drawer, former solicitors general who bring a kind of gravitas. Instead you have these small suits, and the reason that these lawyers are not getting involved is because these are not cases that could potentially lead to a difference in the outcome.
Some of these cases are premised on faulty, factual assertions. So for example, there was a case in Georgia the other day where the claim was that some votes that arrived after Election Day were being counted. And it was based on the affidavit of a single election observer who didn’t really observe anything. And the judge just threw it out. There was another case brought in federal court in Pennsylvania involving how many observers could be back in the rooms where they’re counting the ballots. And the federal judge was exasperated because he said, “You’re making it sound like there are no people in there. Are there any people?” And the Trump lawyer said, “There’s a nonzero number of observers.” I mean, it was just litigated so poorly.
One possibility: This is an attempt to delay the certification of the votes in states so that Trump could continue to search for a path to overturn the election. That is, there’s nothing plausible yet, but maybe something will turn up. The other possibility is that this is an attempt to humor the boss. Dan Drezner has this book Toddler in Chief, and this seems like maybe they’re trying to please Trump by giving him what he wants. And he said, “He wants to litigate the hell out of this.” And already before the election said, “We’re bringing in the lawyers,” and so they brought in the lawyers. They just brought in lawyers to file—I don’t want to call them necessarily frivolous suits, but really small-bore lawsuits that are not going to really make a difference in election outcomes.
And maybe that leads, inevitably, to the question that’s been on my mind all week, which is, where is Bill Barr? He has been silent, if I’m not mistaken, other than one little throat-clearing this week about allowing folks into polling places. But does it signal something that listeners don’t understand, that Barr has gone utterly silent as Trump rages about the things that Barr seemingly agreed with last summer?
It could show us that there’s a bottom, even for Bill Barr, which is nice to see. We’re not in full “banana republic mode,” where you have the government making completely unsupported factual claims about an election being stolen. I was very concerned seeing the report that DOJ had changed its rules so that it could send armed officers to seize ballots in the case of a potential election investigation. But none of that has materialized. The DOJ silence, I’m sure, is something that is really bothering the president. He’s called on the Department of Justice to get involved, but if you’re thinking about this as Bill Barr, and you’re imagining a post-Trump world, if you’re trying to salvage any semblance of your credibility, you’re not going to do something that’s going to further undermine that credibility to no political end, because these things are not going to lead to a difference. Because at the end of the day, the norms that we have that have been so pressured seem to be holding at the moment that we need them to. We’re recording this Friday morning—we don’t know exactly what things are going to look like—but I come in optimistic that we’re going to make it through this moment.
To hear the rest of their discussion, as well as a conversation with Jim Zirin about Trump’s playbook, listen below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, Stitcher, Google Play, or wherever you get your podcasts.