The 2020 presidential race is still not over, with Democratic presidential candidate Joe Biden pulling away in Pennsylvania, Georgia and Nevada—but not by enough yet to clinch victory—and President Trump continuing to narrow Biden’s lead in Arizona.
Meanwhile, as Biden gets ready to declare victory, Trump is refusing to concede and has already filed legal actions in four different states.
Joe Biden could be declared president-elect by the Associated Press and the major networks at any moment, but the Trump campaign insists Biden is making a “phony claim” to the White House, and it is fighting in court to have ballots that favor Biden overturned.
Jessica Levinson is Clinical Professor of Law and Director of the Public Service Institute at Loyola Law School in Los Angeles, and she joined “The State of California” to talk more about the legal battle that could follow the political one at the polls.
When it comes to Trump’s legal strategies, Levinson told KCBS Radio that she does not believe that any of them is likely to succeed.
“I think what we see are some political arguments that the Trump team is trying to create to kind of veneer a viability by making them legal arguments by trying to walk those political arguments into a court house,” she said.
Levinson said it seems that most of the legal arguments are centered around wanting to stop the count of late arriving votes, to start recounts or against not allowing certain observers to watch the process.
“But in order to really become outcome determinative, you need a lawsuit in a state that could flip the election, and then you need a suit to address enough ballots that could flip that state,” she explained. “I don’t see that perfect storm happening right now.”
The Trump campaign has asked that ballot counting be stopped in some places, but not in others where the tallies could favor his win.
Levinson said that this strategy shouldn’t play into how the court might look at these cases, but questions of fact and violated laws will.
“The inconsistency is bad for a political argument,” she said.
In projecting the difficulties officials would likely run into attaining a final vote count in a timely manner for this year’s election has had the Supreme Court recalling past cases, like Bush v. Gore, and raised the question of how important shifting public opinion is going into the court room.
“it really was a once-in-a-generation moment,” Levinson said. “The reason I think the political discourse was so important when it came to Bush v. Gore is that the Bush team was able to make Gore look like such a ‘sore loser’ throughout.”
She explained that while that might not have directly affected any judges’ decision, it quickened the need for Vice President Gore to stop his appeals.
Levinson said that Trump’s call for his supporters to head to the polls to monitor voters is part of the “playbook” now, saying it was about getting public support and hoping it would filter into the courtroom.
“Think about the Brooks brothers riot where you had the GOP sending in Republicans to watch the people counting the ballots,” she said. “Think about republicans chanting ‘voter fraud’ even thought there was no allegations of voter fraud in Bush vs. Gore.”
Levinson does not think Trump’s election cases will make it to the Supreme Court, but she said if any of them do, there will be at least three conservative justices who will be willing to address them.
“If a Pennsylvania case came before a court and dealt with late arriving ballots, and there was a question as to whether or not the Pennsylvania Supreme Court had the power to say, ‘Yes these ballots can arrive much later,’ maybe you have this new conservative legal argument take hold,” she said. “But I think there’s a lot of if’s and far more unlikelies attached to that scenario.”
If Trump refuses to concede and acknowledge his loss in this election, Levinson said that there’s nothing in the constitution that says a president’s term ends unless he fails to concede.
“This is an easy one,” she said. “You do not need a president to concede. That’s our norm. That’s what we’ve all been accustomed to that’s what we expect, and frankly that’s what we’re all proud of.”
Levinson laid out the timeline leading up to the potential shift of power.
“December 8th, states have to resolve all of their Electoral College disputes; December 14th, the Electoral College votes; January 6th, Congress certifies the results; Noon (eastern time) January 20th, this term ends,” she said. “And there’s no provision in the constitution that says unless the President of the United States says this is a fraudulent election or unless the president says I’m just not conceding, that frankly has no legal consequence.”