Comment: Trump’s legal argument neither legal, nor an argument

Trump can demand the Supreme Court stop the count, but there’s nothing for Trump to take to court.

By Joshua A. Geltzer / The Washington Post

Even as President Trump falsely claimed electoral victory early Wednesday morning, he implicitly acknowledged that the election results are not, in fact, decided yet by pledging to go to court to obtain the result he wants: reelection.

But going to court requires making actual legal arguments. And, for all of the complex election-related legal questions that might still arise as the votes are counted, none of the claims Trump made on Wednesday morning qualifies as a legal argument, let alone a winning one.

Most outrageous was Trump’s claim that he’d sue because “we want all voting to stop.” If he really meant “voting” as opposed to “counting,” that’s simply based on a falsehood. All voting has stopped. That’s the whole reason the country is beginning to see election results, because the end of Election Day marked the end of voting, and election administrators around the country began reporting results. For Trump to suggest otherwise is dangerous; it gives his supporters reason to believe Trump’s long-standing, escalating claims that any election loss represents something being “stolen” from him. But it’s nothing his lawyers can take to court. It’s not even close to something they can sue over.

At least Trump’s desire to go to court to stop vote-counting from continuing in states where he appeared to be leading as of the moment he delivered his remarks was grounded in reality. As a factual matter, vote-counting does continue, so it could, theoretically, be stopped. But as a legal matter, there is, again, nothing for Trump to take to court. Vote-counting should continue — must continue — when there are legitimate ballots still to be counted, as there are in a number of states, including potentially decisive ones like Michigan, Wisconsin and Pennsylvania.

The notion that there just needs to be an end to that counting process because it’s after Nov. 3, because Trump was “just all set to get outside and just celebrate something that was so beautiful, so good,” as he put it, simply because he doesn’t like it — or for whatever other reason — isn’t even in the ballpark of claims with which Trump’s lawyers could prevail in court.

Finally, a somewhat narrower variant of Trump’s claim was that counting of mail-in ballots, in particular, should stop, which he implied by saying his apparent lead in states still counting such ballots was “going to be almost impossible to catch” and complaining that “I’ve been saying this from the day I heard they were going to send out tens of millions of ballots.” He has, indeed, spent months claiming baselessly that mail-in ballots are particularly susceptible to voter fraud and therefore shouldn’t be trusted. It’s a claim that Trump’s attorney general, William Barr, has echoed, even while acknowledging that he has no empirical basis to back it up. And it, too, isn’t a legal claim that would stand a chance in court.

Different states provide for mail-in voting to different degrees and in different ways. In Wisconsin, Michigan and Pennsylvania, the states where Trump was particularly alarmed to see his early apparent leads eroding as more votes were counted, Republican state legislators specifically blocked officials from processing early or mail-in votes until Tuesday, virtually guaranteeing the appearance that Trump was ahead until the count caught up. But the notion that the whole manner of voting should be rejected? That’s not a legal argument; that’s poppycock.

To be clear, it’s at least possible that there will indeed be litigation ahead as the 2020 election results get sorted out. It’s imaginable that it’ll even reach the Supreme Court, though it’s virtually certain not to start there, as Trump bizarrely suggested. And it’s conceivable that actual legal arguments will be made by the Trump campaign or by other Republicans. But we didn’t hear any from Trump on Wednesday morning; not by a long shot.

Joshua A. Geltzer, a former senior director for counterterrorism and a deputy legal adviser at the National Security Council, serves as executive director of Georgetown Law’s Institute for Constitutional Advocacy and Protection.

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