Trump's 'Hail Mary' attempt to overturn the election result, via the Supreme Court, is actually full of holes
Sinéad Baker
President Donald Trump's latest bid to overturn the results of the 2020 presidential election relies on legal arguments that are full of holes and glaring errors.
The president and 17 Republican state attorneys general have backed a lawsuit filed to the Supreme Court by Texas' attorney general, Ken Paxton, which argues that votes in four battleground states won by President-elect Joe Biden were "tainted."
The Trump campaign on Wednesday filed a motion to the Supreme Court to let the president join the suit.
It's Trump's latest move in his efforts to dispute and overturn the election results, as the Electoral College prepares to vote on December 14. Trump has been repeating baseless claims about voter fraud since before the election, and he has launched legal challenges in numerous states that Biden won. He has not won any of those challenges so far.
The Texas lawsuit seeks to delay the certification of the results in Pennsylvania, Wisconsin, Michigan, and Georgia, arguing that alleged issues with the votes should be investigated.
As Business Insider's Charles Davis previously reported, the bid is highly unlikely to succeed.
Both that lawsuit and the Trump campaign's motion contain some glaring errors.
They get a basic fact wrong
As The Daily Beast first noted, the motion filed to the Supreme Court by a Trump campaign lawyer makes a mistake with a basic fact.
John C. Eastman said a presidential candidate had never lost an election while winning both Florida and Ohio. Trump won those states, so Eastman's claim was that Trump should have won the election.
But, as The Daily Beast noted, Richard Nixon won both of those states in 1960 and still lost against John F. Kennedy.
Trump also made the false claim about the states on Twitter.
They don't give evidence of fraud
Eastman's motion does not offer any specific evidence of any fraud taking place.
Instead, it argues that new ways of voting during the pandemic could have resulted in fraud.
"The constitutional issue is not whether voters committed fraud but whether state officials violated the law by systematically loosening the measures for ballot integrity so that fraud becomes undetectable," it said.
Experts have repeatedly said there is no evidence that mail-in voting systems lead to widespread voter fraud, and many states have had mail-in voting for decades — meaning the new systems rolled out because of the coronavirus pandemic were mostly an expansion of existing voting methods, rather than a new system.
The motion goes on to argue that evidence of fraud may not even be possible to find because the fraud could have been so successful as to be undetectable.
"The unlawful actions of election officials effectively destroy the evidence by which the fraud may be detected," it said.
The motion also argues it is not actually necessary for the Trump campaign to prove fraud took place.
Steve Vladeck, a professor at the University of Texas School of Law, wrote in an NBC News op-ed article that Paxton's lawsuit did not provide evidence that specific instances of voter fraud had taken place.
Instead, Vladeck said, the filing argues against the states' changes to voting rules, even though other states made similar changes.
"Texas is arguing that coronavirus-related changes to election rules in each state violate the federal Constitution, never mind that most states (including Texas) made such changes this cycle," he wrote, describing the filing as a "Hail Mary attempt."
The math doesn't add up
As The Washington Post's Philip Bump reported, Paxton uses flawed logic while arguing that Trump's loss in all four states is statistically unlikely.
It argues that "the statistical improbability of Mr. Biden winning the popular vote in these four States collectively is 1 in 1,000,000,000,000,00 0" — arriving at this figure by ignoring the different demographics across the state, including where the population is the most dense and the various methods that voters were likely to use to cast their ballots.
Eastman's suit also doesn't outline a clear mathematical path to a Trump victory.
It claims that many ballots in four states should be rejected but gives a figure of just how many ballots should be thrown out for only one state.
It argues that about 40,000 ballots in Georgia — where Biden won by about 13,000 votes after a hand recount — should have been discounted, saying they should have been rejected "based on historical rejection rates."
It doesn't say how many votes it thinks should be dismissed in the other states — Pennsylvania, Wisconsin, and Michigan — which Biden won by larger margins.
'Dangerous garbage, but garbage'
Legal experts have largely dismissed Paxton's lawsuit as a publicity stunt, The New York Times reported.
Lisa Marshall Manheim, an associate professor at the University of Washington School of Law, wrote in The Washington Post: "The litigation is legally incoherent, factually untethered and based on theories of remedy that fundamentally misunderstand the electoral process."
The election-law expert Richard Hasen, who is a professor at the University of California at Irvine School of Law, told NPR: "This is a press release masquerading as a lawsuit ... What utter garbage. Dangerous garbage, but garbage."
Georgia's Republican attorney general, Chris Carr, said Paxton was "constitutionally, legally, and factually wrong about Georgia," The Times reported.
Pennsylvania's attorney general, Josh Shapiro, a Democrat, also said Wednesday: "Donald Trump will not get away with his attempts to subvert a free and fair election."
'I frankly struggle to understand the legal theory'
Sen. John Cornyn, a Texas Republican who previously served as attorney general of the state, said he didn't understand the logic of the lawsuit.
"I read just the summary of it, and I frankly struggle to understand the legal theory of it," he told CNN.
"Number one, why would a state, even such a great state as Texas, have a say so on how other states administer their elections? It's an interesting theory, but I'm not convinced."
Some other Republicans have also criticized the lawsuit, but many in the party have publicly supported the effort.
