Trump is practically begging for the Supreme Court to slap him down
If President Donald Trump were completely desperate for unnecessary but completely decisive humiliation before the United States Supreme Court, it's hard to imagine that he'd be acting any differently.
On Wednesday, he threw his weight behind a Texas lawsuit filed before the Supreme Court, asking to intervene in his capacity as a candidate. The Texas case, absurdly, seeks to overturn the results of the presidential election in Pennsylvania, Georgia, Michigan, and Wisconsin, all of which voted for President-elect Biden, votes that have been officially certified. Essentially, Texas Attorney General Ken Paxton argued that because he objects to some of the ways in which those states ran their elections, the certified results should be investigated and potentially thrown out, with the state legislatures left to pick appoint their own electors (presumably for Trump).
Trump's intervention in the lawsuit is patently ridiculous. He seems to go a bit further than Texas, suggesting that the election certifications be annulled and the legislatures appoint their own electors or that the states' electors blocked entirely. This would, in fact, still leave Biden with a winning majority of the remaining electors, but we can ignore this detail.
The president's motion before the court is laughable. It claimed, for instance: "President Trump prevailed on nearly every historical indicia of success in presidential elections. For example, he won both Florida and Ohio; no candidate in history—Republican or Democrat—has ever lost the election after winning both States."
This last claim is simply not true. President John F. Kennedy won the presidency in 1960 without either Florida or Ohio. Moreover, even if it were true, it would be irrelevant. Electoral coalitions shift all the time. Even if Biden's winning collection of states was a historic anomaly, that wouldn't show it was a fraudulent or illegitimate win. And in fact, Biden's victory was completely in line with what expert election analysts had expected before the outcome was known. For example, Sabato's Crystal Ball predicted the outcome almost perfectly ahead of time, missing the result in just one state: North Carolina.
But we can ignore Trump's factually erroneous filing. The fact that he submitted the filing at all shows his utter desperation. Even before the election, he posited that the election would end up before the Supreme Court, a point which he used to argue in favor of rushing to confirm Justice Amy Coney Barrett. He seems to have convinced himself that with six conservative justices — and five justices seen as reliably conservative, if you discount Chief Justice John Roberts — will be eager to just hand him victory.
The problem is, one can't just take an issue to the Supreme Court. It needs to go through the proper channels. The Texas case tries to exploit one loophole in the regular channels. When one state sues another, the only proper venue in the Supreme Court. Since Texas was able to submit its case right to the Supreme Court, Trump hopes he can tag along for the ride, though there's no reason to believe this gambit will work.
More problematic, though, is the Texas lawsuit itself. It's simply ridiculous, and the Supreme Court is nearly guaranteed to see it that way. It may dismiss it out of hand, or dismiss it after considering the merits. The court's conservatives certainly have their Republican Party sympathies, but they also have genuine beliefs about how the law should work. And this case doesn't seem to conform to any of them.
First, it's not clear why a state should have legal standing to sue another state over its election processes. If this were permitted, it could unleash a flood of lawsuits of states trying to overturn other states' election laws. This is not what the justices want to deal with, and it's obviously untenable.
Second, and perhaps more importantly, even if a state did have a credible legal objection to another state's election law that the Supreme Court was willing to hear, the case comes far too late. Any challenge should have come before the election was actually conducted, not after — this is a reason many of the post-election lawsuits on the Trump side have failed. If this kind of challenge were allowed to proceed, it would just guarantee that every election could be contested after the fact by the loser. This is no way to run a democracy
Third, the lawsuit is not consistent. Texas is just challenging states that it thinks it needs to flip to allow Trump to win. Other states, including Texas itself, made changes to its election law that could be challenged under the lawsuit's theory. This is a clear sign of political cynicism, rather than bona fide legal grievance.
Fourth, the remedy proposed is preposterous. If there were genuine objections to a state's election laws, the court may be open to addressing them. But the solutions would need to come before votes are actually cast. Instead, the case suggests that the state legislatures may just completely overturn the result of the people's vote because they don't like the outcome. This is essentially mass disenfranchisement as a solution to relatively minor process complaints.
In short: It's not going to happen. If it were to happen, the Supreme Court would be throwing democracy out the window.
But Trump is all in. After more than 50 election-related lawsuits filed by him and his allies, all but one of which resulted in complete failure, Trump claimed on Twitter that this lawsuit is the real deal:
We will be INTERVENING in the Texas (plus many other states) case. This is the big one. Our Country needs a victory!— Donald J. Trump (@Donald J. Trump)1607521479.0
He won't get a victory. There's no plausible case to be made. But by putting all his marbles in the basket, he's setting himself up for a giant fall.
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