For those who are nervous because they think there’s too much uncertainty about who is going to be president once Donald Trump’s term in office ends on January 20th at noon, I can’t say this plainly enough: Joe Biden will become the 46th President of the United States of America.
Yet, as certain as that statement is, the following statement is just as true: Every second between now and then, Trump will use every tool at his disposal, no matter how frivolous, to attempt to steal a win.
To be clear, there is zero chance he’ll be successful in this endeavor. Just as he has lost all but one trivial case since Election Day, he will lose again and again between now and the inauguration. However, as unsuccessful as he will be at overturning the election, he will be successful in undermining American democracy, something we will be living with for years after Trump leaves office (which, to restate the point, will be on January 20th at noon!).
Trump’s latest ridiculous attempt to thwart the will of the American electorate comes in the form of a Texas lawsuit filed Tuesday morning. In the lawsuit, Texas is suing the states of Pennsylvania, Michigan, Wisconsin, and Georgia, alleging election officials in each of those states failed to follow their state laws during the election by making it easier for people to vote absentee, early, and/or by mail, and thus — according to Texas — making it easier for voter fraud. The remedy the suit seeks is to throw out the results of all four states. Of course, all four states voted for Biden.
This lawsuit is peculiar because Texas filed it directly in the Supreme Court. Almost all Supreme Court cases start in the lower courts and take their time to work their way up to the Supreme Court. However, the Constitution allows for a small sliver of cases to be filed directly in the Supreme Court. One such category is suits “in which a state shall be a party.” And federal statute says cases between two or more states must be filed in the Supreme Court. Texas is suing four other states; thus, Texas had to file in the Supreme Court.
But just because this is the type of case that must be filed directly in the Supreme Court doesn’t mean that the court will actually hear the case. The court has discretion to hear these types of cases directly or to send them to the lower courts for development before it gets to the supremes.
Commentators all over the political spectrum agree that there is no way the Supreme Court will touch this case. Take your pick among the almost endless reasons why: There is no legal basis for one state to complain about the election procedures of another state. There is no constitutional requirement that states have similar voting rules or procedures. The justices, even the extreme conservatives appointed by Trump, will not want to interfere with an election that wasn’t that close. And, possibly most important, the justices will have no interest in overturning the votes of millions of people and thereby anointing themselves the final decision-makers in presidential elections. There is just no world in which this lawsuit succeeds, as it is completely frivolous.
Nonetheless, Trump has labeled this case “the big one” and filed a motion yesterday to intervene. In plain English, that means he wants to join Texas as a party in the case because he has a stake in its outcome. Other politicians are clamoring to get on board. Texas Sen. Ted Cruz, eager to show his boundless loyalty to the man he has called “utterly amoral,” a “serial philanderer,” a “narcissist at a level I don’t think this country’s ever seen,” and a “pathological liar,” has offered to argue the case in the Supreme Court. And 18 states filed a brief yesterday supporting this lawsuit.
Don’t let any of this fool you into thinking this is anything but a completely asinine case meant to curry favor with the president (the Texas attorney general who filed the lawsuit is currently under FBI investigation, so could really use a pardon) and raise funds for Trump’s post-presidency endeavors. To call it a Hail Mary or long shot would be a disservice to those terms. This lawsuit will fail, just like all the others.
Yet, this lawsuit, like all the others, will have a different form of success. Through all of Trump’s actions, the message to his supporters and anyone else listening is that the American voting system cannot be trusted. Even worse, the message is that if you lose at the ballot box, even if you lose by more than 7 million votes, you have every right to go to court to get judges to overturn the election results, for no reason other than that you simply can’t imagine the other guy could beat you. The damage that message will do to our democracy will run deep and last for years.
The irony of this new Supreme Court case is that it has been filed at the same time the leadership of the Republican party is holding up the Covid relief package because the party wants to prevent people from filing coronavirus-related lawsuits. Out of one side of his mouth, Senate Leader Mitch McConnell wants to block these lawsuits brought by sick people, but from the other side of his mouth, he keeps voicing support for Trump to pursue all of his legal remedies around the election. In keeping with the Republican platform on much of everything, it boils down to “lawsuits for me, but not for thee.”
This Supreme Court case is just the latest example of this hypocrisy. Like the cases before it (and the cases sure to come), everyone should be condemning the completely wasteful uses of people’s time and attention that is the Trump legal strategy.
Cohen is a professor of law at the Drexel University Thomas R. Kline School of Law.