Election law expert unpacks 'Trump's endgame' in his legal fight against the vote count

Election law expert unpacks 'Trump's endgame' in his legal fight against the vote count
President Donald J. Trump gives a fist bump to the press Friday, Oct. 30, 2020, prior to boarding Marine One en route to Joint Base Andrews, Md. to begin his trip to Michigan, Wisconsin and Minnesota. (Official White House Photo by Tia Dufour)

As of Thursday afternoon, the final result of the United States' nail-biter of a presidential election is still up in the air. Former Vice President Joe Biden has won 253 electoral votes, according to the Washington Post, but votes are still being counted in Pennsylvania, Georgia and other battleground states. Election law expert Richard L. Hasen, in an article published on the Election Law Blog and republished by Slate on Thursday afternoon, contemplates "Trump's endgame" is if the election is called for Biden.

"Although things remain uncertain," Hasen explains, "it appears that Joe Biden could soon be declared by news organizations as the winner of the presidential race. This depends upon finishing the count in a number of key states, including states where Trump is at the moment behind — Arizona, Nevada — and places where he is ahead: Georgia, Pennsylvania."

Hasen notes that Trump and his allies "have been promoting baseless and dangerous conspiracy theories that Democratic elected officials are somehow 'stealing' the vote when all they are doing is counting the ballots. Trump is doing exactly what many of us feared and warned about: using the fact that there is a 'blue shift' in votes in some places as evidence of fraud. It is nonsense, and the shift comes from the order in which ballots are processed."

Hasen, in his article, is dismissive of the lawsuits that Trump has filed in various states.

"None of Trump's small-bore lawsuits have been able to stop the count, and of course, there is no basis to do so," Hasen argues. "Trump's litigation strategy is not created to lead to a difference in results unless Pennsylvania is the decisive Electoral College state and the vote count is so close that the result would depend upon those segregated ballots arriving during the three days after Election Day. Indeed, one could imagine just as easily Trump being behind in Pennsylvania and wanting to have those ballots counted (and they should be counted, regardless of who is ahead or behind)."

Many Trump critics fear that if Biden gets to 270 electoral votes and wins the election, Trump will refuse to concede.

According to Hasen, "If Trump loses, he may grumble and the country may move on — or he can try to keep yelling fraud baselessly. If he does, it will be up to responsible voices in society, including Republican leaders, to tell him to accept defeat even if he will not formally concede. This is what happened when Matt Bevin lost the Kentucky governor's race, yelling fraud on the way out but unable to convince Republicans in the state Legislature to take the vote count away from the voters."

The Washington Post reports 214 electoral votes for Trump, as of Thursday afternoon. Nonetheless, Trump still has a path to victory if he wins most of the remaining states. The math is increasingly difficult for Trump, but not inconceivable.

Hasen concludes his article by saying that Biden would concede if he were certain he lost, but laments that he cannot say the same thing about Trump.

"I have no doubt that if Biden loses, he will concede after exhausting any legal avenues for contesting the vote," Hasen writes. "I have less confidence Trump would do so if he loses. The question is how the country moves on if Trump continues to rail baselessly against the vote count."

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