Trump’s Lawsuit Amounts to ‘a Tweet With a Filing Fee,’ But That’s Not the Whole Strategy

MAGA protesters try to stop vote counting in Detroit. Screenshot of ABC-affiliate WOTV broadcast.

Stop the counting

Keep counting!

These contradictory demands lie at the heart of Trump’s legal strategy to steal the 2020 election.

You can see it in the opposing chant of Trump supporters in The Recount’s remarkable side-by-side video of small MAGA mobs in Arizona and Michigan; rats piped to their nearest polling place by the dog whistles of Trump himself. 

The Trump campaign and the Republican party have filed new lawsuits in Georgia, Michigan, and Pennsylvania joining the lawsuits filed before Election Day in nearly every swing state. Trump also wants a recount in Wisconsin. (Under Wisconsin law, parties asking for a recount when the margin of victory is greater than 0.25% have to pay for the recount. Jill Stein paid $3.5 million for the 2016 recount. Trump has 45 days to pay if the recount doesn’t change the outcome, but given Trump’s penchant for stiffing his contractors, Wisconsin would be wise to ask for payment up front.)

The legal arguments seem to be imbued with the spirit of Trumpism: they’re loud, hyperbolic, and don’t make a whole lot of sense. They’re nakedly partisan, as one would expect in an election lawsuit, but devoid of a legal or factual basis, not something one would expect to see in any court of law. In one federal court hearing on Wednesday, a lesser case involving less than 100 ballots, the judge repeatedly asked the Republican Party attorneys to explain the actual problem: “I don’t understand how the integrity of the election was affected. That’s what I’m looking for.” 

Professor Justin Levitt of Loyola Law School in Los Angeles pierced the bloated Republican legal strategy when speaking to Propublica: “A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee.”

The Republican Party’s legal problem is that there is no electoral problem. Voter fraud is not a problem, though voter suppression most certainly is. Counting millions of ballots takes time. Counting is not fraud. Across the country, children in their virtual public schools learned about voting and the election and can easily grasp this simple truth: count every vote. That’s something every American who values democracy can get behind. 

The real world isn’t a reality show. While media outlets will call races, states don’t certify the results of their elections for weeks—not until every vote’s been counted. And, of course, the delays are largely because state legislatures, usually when Republican controlled, passed laws that don’t allow mail-in ballots to be counted until Election Day.

But Trump’s—and America’s—reality show mindset is partially why we’re here. We’re seeing the counts change in real time. Margins disappearing or growing with each refresh. In a tweet appropriately flagged as containing misleading information, Trump wrote, “They are working hard to make up 500,000 vote advantage in Pennsylvania disappear—ASAP. Likewise, Michigan and others!” 

While we all think and speak as if one candidate or another has an advantage while the votes are being counted, that’s not true. The votes are cast. The outcome is set. We just have to count it up. If states didn’t publish any numbers until the count was complete, the outcome would be exactly the same but without the horserace narrative and a President subverting the will of the people. 

Once the polls close on Election Day, nothing can change the outcome. Except litigation. It’s tempting to think that Trump only wants to freeze the numbers at a time when it might be favorable to him. That’s part of his rationale, but he’s also trying to gum up the system. The plan is to start litigating these cases now, but figure out the best arguments as the cases progress in the precincts where they might do the most damage to the math. Start fighting everywhere now, but wait and see where he needs to chip away at the numbers. 

With a normal candidate in a normal election, this would be less of a concern and is one reason concessions are about much more than being a good sport and bringing the country together. In other words, just like the counting, with these lawsuits we need to wait and see. So far, the ineptitude of Trump’s legal team and the emptiness of his arguments have not impressed the courts. 

Trump’s closest spiritual advisor, Paula White, had a little bit better grasp of the math than his attorneys did. You can’t fight math, at least not with the law, so White decided to ask for some supernatural assistance. Amid the speaking in tongues, White claimed that “angels have been dispatched from Africa right now” and that “angelic reinforcement” was coming, not from the divine plane, but from South Africa and South America:

The angels of Africa could not be reached for comment.