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Analysis

Clock is ticking for Trump: 'Forces of inertia are on Biden's side'

A man holds a placard that reads "Count Every Vote" while demonstrating across the street from supporters of President Donald Trump in Philadelphia, Penn., on Nov. 9, 2020.

MARK MAKELA/GETTY IMAGES/TNS

By MICHAEL WILNER | McClatchy Washington Bureau | Published: November 14, 2020

WASHINGTON (Tribune News Service) — The clock is ticking for Republicans who insist that rampant voter fraud altered the outcome of the 2020 presidential election.

Party leaders are asking for time to come up with evidence supporting their claims, which so far have been unsubstantiated, because three states that clinched victory for President-elect Joe Biden — Georgia, Michigan and Pennsylvania — will certify their election results within the next 10 days.

Republicans have moved to halt the certification of results in all three states, and hope that recounts or audits of votes in some states could delay those final certifications.

"Our legal strategy is to proceed to bring resolution to any of our issues prior to final certification," said Matt Morgan, general counsel for the Trump campaign.

He noted that secretaries of state might have to recertify results if recounts change the ultimate vote tally. "So all of our legal matters are on timelines that we hope will achieve our intended result prior to final certification," Morgan said.

The certifications will effectively close the door on Trump's legal challenges.

The only state that has confirmed it will recount votes is Georgia, where Biden leads President Donald Trump by over 14,000 votes. That recount could be completed before the state's Nov. 20 deadline to certify election results.

The Trump campaign has also called for a recount in Wisconsin, where they are entitled to one as long as they pay for it. That state's deadline for certification is later, Dec. 1, and Biden's margin of victory stands at nearly 20,000 votes.

Attorneys for Trump's campaign and the Republican Party have already lost over a dozen cases. Several lawsuits filed since Election Day have been rejected in state courts on grounds that they lacked evidence or sound legal arguments.

And the few cases that remain active are seen by legal experts as unlikely to succeed based on their merits or change the outcome of the race.

"The forces of inertia are on Biden's side, because the processes of moving toward certification and choosing electors is pretty much on autopilot unless there's some way of disrupting it," said Richard Hasen, chancellor's professor of law and political science at the University of California, Irvine. "The cases as a whole seem quite weak, either weak factually or weak legally or both."

UNCLEAR STRATEGY

Aides to Trump acknowledge his legal wrangling is unlikely to change the outcome of the election. But they struggle to articulate what the president hopes to achieve by casting doubt on the democratic process.

One theory — supported by the framing of two lawsuits from the Trump team filed in Michigan and Pennsylvania — is that the president and his campaign hope to sow enough doubt in the integrity of the results to justify state legislatures breaking with the popular vote and sending electors to vote for Trump instead of Biden.

"What people are scratching their heads over is, what's the end game here? Because it does not appear that Trump's going to be able to litigate his way to victory," said Hasen. "That's why people are talking about crazy things like state legislatures trying to pick an alternative slate of electors, or something like that."

But even that extreme move would not be enough to secure Trump the 270 Electoral College votes necessary for victory. Georgia and Pennsylvania do not legally require their state electors to follow the popular vote, but Michigan, Nevada and Arizona all have laws that cancel and replace electors who fail to vote according to the popular will of their states.

"It's a bit of a fairytale in any event, because the Pennsylvania legislative leaders have been on record that they have no intention of doing this, and no state legislature has ever done something like this in the modern era," said Danielle Lang, voting rights director at the Campaign Legal Center.

DEADLINES APPROACHING

Trump on Wednesday promised "results" from his legal strategy next week — the final stretch before certification deadlines arrive.

Biden leads Trump in all three states with imminent deadlines — Georgia, Michigan and Pennsylvania — by thousands of votes, and experts in election law say that such substantial margins of victory are rarely overturned by recounts or through the court system.

While a recount in Georgia will take place ahead of that state's Nov. 20 certification deadline, its Republican secretary of state does not anticipate the results to substantially change.

Lang said that efforts by Trump's legal team to distinguish between certification and "final certification" would not have an effect outside of Georgia, the only state confirming a recount.

Certification is the final step that states take to approve the results of their elections. State electors will meet in their state capitals to cast their ballots for president on Dec. 14.

"In general, absent a recount, the certification is the certification," Lang said.

Rebecca Green, co-director of the Election Law program at William & Mary Law School, said that each state certification amounts to "a declaration of the race that's hard to overcome."

"Any recount lawyer will tell you that the name of the game is who's ahead when the count is certified, because historically, it's a much harder job to come from behind than it is to maintain a lead," Green said. "But the real meat comes when you're dealing with a race where there's just a few hundred votes apart. In a case where its thousands and thousands of ballots, the lead is far outside the margin of what a recount would typically upset."

Pennsylvania and Michigan certify their vote tallies on Nov. 23. Biden leads Trump in Pennsylvania by over 50,000 votes, and in Michigan by nearly 150,000 votes.

The Trump campaign has filed lawsuits asking courts to halt certifications in both states, but legal experts doubt their challenges have much chance of success.

"In Pennsylvania and Michigan, the campaign does not seem to have put forward a basis for delaying certification," said Hasen. "The complaint is a combination of things that have already been rejected, and kind of novel legal theories that are unlikely to be accepted by the court."

Arizona follows a week later, on Nov. 30. A judge there repudiated Trump's legal team Thursday for "spam" claims of voter fraud in its evidence collection process, throwing its one remaining case in the state in doubt.

Noah Feldman, a constitutional law professor at Harvard Law School, said that Trump's legal challenges "would get much much weaker" once the states in question have certified their election results. But that is only part of their problem.

"Their problem isn't so much time as that they don't seem to have facts or credible legal theories to support their claims," Feldman said.

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