It’s really hard to fully capture the current stage of the presidential election. At the same time that former Vice President Joe Biden and his supporters are feeling a confidence that the prize is just around the corner, President Trump has moved on to third-grade lawyering that barely passes the laugh test.
As for Biden, as I write this, he is as few as six electoral college votes away from reaching the magic number of 270 (though there is disagreement about Arizona, with Fox and the Associated Press having called it for Biden, but other outlets holding back until more votes are tallied; without Arizona, Biden is 17 votes away). In Nevada, which has exactly six votes and remains uncalled, he holds a slim lead, but there are very few votes left to be counted, and most election experts think the outstanding ones will tilt toward Biden. We’ll know more Thursday mid-day, but it’s looking likely that Biden will reach the 270-vote threshold…and that’s without knowing the final results in Pennsylvania, Georgia, or North Carolina.
Faced with a looming Biden victory, Trump is doing the only thing he’s known how to do his entire life — lashing out and filing lawsuits that would be absolutely hysterical if they were coming from anyone other than the president of the United States.
As he has throughout his presidency, his lashing out is in the form of a tweet, and this one might just take the cake as the most ridiculous tweet in the history of Trump tweets (and we all know how high that bar is). It came Wednesday afternoon, and paraphrasing the tweet wouldn’t do it justice, so here it is in its entirety:
We have claimed, for Electoral Vote purposes, the Commonwealth of Pennsylvania (which won’t allow legal observers) the State of Georgia, and the State of North Carolina, each one of which has a BIG Trump lead. Additionally, we hereby claim the State of Michigan if, in fact,…..
— Donald J. Trump (@realDonaldTrump) November 4, 2020
For those who aren’t experts in the minutiae of the Constitution, Trump is referring of course to the little-known Claim Clause regarding presidential elections. This clause, which Hillary Clinton now wishes she knew about back in 2016, is located just after the No Do-Overs Clause and just before the No Takebacks Clause. If you dive deep enough into constitutional history, you’ll discover that our Founding Fathers also considered adding a Na-Na Na-Na, Boo-Boo Clause, but James Madison’s diary indicates that the Founders came to the conclusion, after days of debate, that such a provision would be too difficult for future generations to interpret.
An important part of the Claim Clause that Trump is utilizing in this tweet requires that the candidate claiming a state after a presidential election must use official-sounding language in the “claim.” Thus, Trump’s use of “hereby” in his tweet. According to the Constitution, that formality seals the deal for him.
In all seriousness, this is pure and utter nonsense, as effective as me tweeting that I claim tonight’s lottery winnings. And that’s likely how effective the second part of Trump’s strategy appears to be — bringing long-shot lawsuits in close states and threatening even more desperate ones to come.
These lawsuits are somewhat hard to comprehend because it’s hard to imagine them having much effect on the election. In both Michigan and Pennsylvania, Trump has filed a lawsuit asking the ongoing count to be stopped because he claims that his legal observers were not provided meaningful access to observing the ballot count process. Michigan election officials have said that they complied with all transparency requirements in the state, and the Associated Press has written that it observed them in the state. And Pennsylvania went so far as to have some locations broadcast live webcams of the count. (Full disclosure: I was a Democratic observer in Philadelphia, one of the sites that is the basis of the Trump suit, and we were able to watch, with the Republican observers, from several feet away. Slate accurately described the process as “the perfect boring thing to soothe your nerves.”)
There are other lawsuits as well. Trump is trying to join the challenge in Pennsylvania that would prohibit the state from counting ballots that are postmarked by Election Day but received afterwards. The Supreme Court has already rejected two emergency appeals in this case, but Trump and the Republican Party are trying yet again. These extra ballots are looking increasingly irrelevant to Biden’s path to victory, which is what makes Trump’s strategy as bizarre as it is a long shot. Since Pennsylvania is increasingly looking like a state that Biden is going to win with the count of the undisputed ballots, wouldn’t Trump want to count the late-arriving ballots in the hopes that they could possibly reverse Biden’s win? I guess stopping people’s votes from counting is more important.
But wait, there’s more! Trump is also challenging efforts to allow voters to “cure” deficient ballots in Pennsylvania, asking for a recount in Wisconsin, suiting Georgia over 53 supposedly-late ballots being counted, and threatening (through his handsy surrogate Rudy Giuliani) to file a national lawsuit alleging election fraud.
These are almost as doomed legally as the ultimate Hail Mary that Trump floated late Tuesday night in his speech claiming (his non-existent) victory. In that speech, he said he was going to go to the Supreme Court to stop the vote counting. Maybe he was talking about joining the Pennsylvania case mentioned in the previous paragraph. If so, fine. But his language was much broader than that, suggesting he wanted the Court to intervene to stop all counting around the country because — surprise! — at that point in time, Trump was winning several states that have since flipped to Biden. Putting aside the audacity of a president asking states to stop counting millions of votes, there is no legal basis whatsoever for asking the Supreme Court to do this, let alone winning. It’s the equivalent of, well, using Twitter to “claim” states in the electoral college total.
All of this just looks stupid and desperate for Trump. He’s using lawsuits to try to stop counting more ballots in some states (the states where his lead is rapidly dwindling, Pennsylvania and Georgia), but is relying on counting every ballot in other states (the states where he is behind but hopes to make up ground, Arizona and Nevada). As always with Trump, there is no principle here other than the one principle that has motivated his entire career: Do and say anything to make Trump a “winner.”
Look, I’m no fool. I know that Trump has spent the past four years filling the federal courts with judges and Justices who are extremely conservative and probably very loyal to him. I also know that no one can predict the future. After all, two days after the 2000 election, no one would have foreseen the Supreme Court ultimately deciding that election. So yes, anything can happen. It’s 2020 after all.
But there’s no way, at this point in time, to look at what Trump is doing and come to any conclusion other than that he’s kicking and screaming in his uniquely Trumpian fashion because he sees the writing on the wall. He knows that it’s likely just a matter of time before he goes down in history as the one thing that he hates the most — a loser.