An activist holds a sign as a march organized by Shutdown DC circles around the White House complex, on November 5, 2020 in Washington, DC. Ballot counting continues in many critical battleground states as the final results in the U.S. presidential election remain too close to call. (Photo by Al Drago/Getty Images)
An activist holds a sign as a march organized by Shutdown DC circles around the White House complex, on November 5, 2020 in Washington, DC. Ballot counting continues in many critical battleground states as the final results in the U.S. presidential election remain too close to call. (Photo by Al Drago/Getty Images)

His campaign wants states to throw out legally-cast ballots. The courts aren’t letting that happen so far.

Millions of votes continue to be counted in states across the country, much to the dismay of President Donald Trump. 

The Trump campaign has filed a volley of lawsuits since Wednesday morning, asking for vote counts to be halted in states like Pennsylvania and Michigan, challenging the handling of ballots in Georgia, and asking for 10,000 votes to be thrown out in Nevada in order to disenfranchise hundreds of thousands of voters simply because they were more likely to vote for Joe Biden. 

Trump, who spent months attacking mail-in ballots and discouraging his supporters from using them, has raged and spouted baseless conspiracy theories claiming that these legally-cast ballots that arrived on or before Election Day are somehow fraudulent and illegal.

“IF YOU COUNT THE LEGAL VOTES, I EASILY WIN THE ELECTION! IF YOU COUNT THE ILLEGAL AND LATE VOTES, THEY CAN STEAL THE ELECTION FROM US!,” Trump inaccurately said in a statement on Thursday. 

Several of these lawsuits have already been batted away or resolved in some fashion, and those remaining appear to be of little consequence and are unlikely to affect final vote tallies. 

Instead, the Biden campaign says the effort represents an attempt by the Trump campaign to confuse the public over the results of a fair and free election. 

“The lawsuits are meritless,” Biden legal adviser Bob Bauer said on Thursday. “They’re intended to give the Trump campaign the opportunity to argue that vote counts should stop. It’s not going to stop.”

Bauer said Trump’s lawsuits were intended to “message falsely” about the election and was “part of a broader misinformation campaign” intended to create a cloud of suspicion around the validity of the results. 

While the lawsuits are going through the standard legal process, Bauer expressed confidence that they were “doomed to fail.” He pointed to the Georgia lawsuit as a “comic[al]” effort to force Georgia election officials to comply with the law and separate late-arriving ballots from on-time ones, which they were already doing. Bauer similarly shredded the Michigan and Pennsylvania efforts as “immaterial” and “meritless.”  

“We see through it, so do the courts, and so will election officials,” Bauer told reporters. 

Independent legal experts agree that the lawsuits are not cause for concern and have little power.

“Just because the Trump campaign is filing lawsuits doesn’t mean we need to go crazy over them. As far as I can tell (so far), none have any merit,” Joshua Douglas, a professor at the University of Kentucky’s Rosenberg College of Law, said in a tweet on Thursday.

Trump’s legal strategy was perhaps best summed up by Nancy Leong, a professor of law at Denver University on Wednesday:

Still, Trump has telegraphed what his ultimate goal is: Asking the Supreme Court to throw out millions of ballots and hand him the election. “We will be going to the Supreme Court,” Trump said on early Wednesday morning.

In reality, that’s not how the US court system works. Trump cannot simply ask the Court to take a case. Instead, any lawsuit would have to work its way through the lower courts before the Trump campaign could ask the Supreme Court to intervene. 

“They’ll have to go through either a state court process up to the state supreme court, after which, if they can allege a federal basis, they can theoretically appeal to the US Supreme Court,” David Becker, executive director and founder of the Center for Election Innovation & Research, told reporters on Wednesday. “Similarly, they could work their way up through the federal court process, starting with the district court if they’ve got federal claims.”

In either case, it would likely take weeks or perhaps even a month for any such case to reach the Supreme Court, and even then, the court’s power is limited. Judges can consider only specific constitutional questions that have emerged from lower courts or where they have original jurisdiction. Legal experts contend that even if at some point the Trump campaign does reach the Supreme Court and asks them to throw out millions of legally cast ballots, there is no chance they will succeed. 

“The fact that local officials could not make it through the unprecedently large pile in a single day is no basis for discarding those ballots—or for disenfranchising the eligible voters who properly cast them,” Ned Foley, the director of election law at Ohio State University, wrote in a Washington Post op-ed. “There is not one iota of possibility that the US Supreme Court, or any court, would disqualify those ballots.”

Bauer is similarly convinced that any such effort from Trump will be a failure. 

“If at some point he arrives before the Supreme Court with a novel proposition that ballots that were lawfully cast by eligible voters, but not yet counted by the time Donald Trump wanted them counted, that somehow they don’t count anymore, he will be in for one of the most embarrassing defeats a president ever suffered before the highest court of the land,” Bauer said.