JACKSONVILLE, Fla. – As President Donald Trump’s campaign continues to make allegations of fraud and systemic problems in last week’s election, without enough evidence in court, he will not be able to overturn his election loss to President-elect Joe Biden.
News4Jax on Monday spoke with legal experts about what it will take for Trump to have any hope of overturning the election but didn’t speak with one attorney or analyst who thinks this is an easy path for the president.
As it stands now, Trump needs to overtake Biden in more than one state, so Trump’s team will have to have multiple victories in multiple courts to even have a shot.
The most critical state where Trump would need to win a lawsuit would be in Pennsylvania.
The primary lawsuit so far has been filed by the Republican Party of Pennsylvania concerning mail-in ballots that could arrive up to three days after Election Day.
But even if Trump’s side was successful in that suit, it wouldn’t be enough. He would need more victories in court in Pennsylvania and elsewhere.
Some wonder whether Trump would have more success in the U.S. Supreme Court, where he has installed three justices during his term.
Gray Thomas, a local lawyer with 28 years of handling federal appeals cases, says the president’s side has to prove in any lawsuit that there has been a violation of federal law to even get there.
“There needs to be a question of federal law -- whether it’s a federal statute or Equal Protection Clause of the 14th Amendment,” said Thomas, of the Law Office of D. Gray Thomas. “So there’s just got to be a federal question.”
Thomas says the two primary options for Trump’s side involve either calling tens of thousands of ballots into question and having evidence to prove they’re fraudulent or gathering enough evidence to prove some sort of systemic problem in the voting system.
Peter Goplerud, a dean at Florida Coastal School of Law, says the Trump camp has hired strong attorneys but their job is extremely difficult.
“They say that they have evidence of widespread fraud and other things. but we’ve seen no evidence," Goplerud said. "Presumably, they’re going to come up with something because the one thing you don’t want to do as an attorney is present a frivolous case.”
And the Trump camp has been trying to gather evidence nationally, setting up a hotline for people who think they’ve witnessed voter fraud.
How much time Trump has to make his case
As Trump attempts to fight the results of the election, claiming results in certain swing states were fraudulent, he is likely to face increased pressure to concede the race to Biden.
There are some critical deadlines Trump’s legal process is fighting against to win in court. First is Dec. 8 when all the states have to complete their recounts. The other is six days later on Dec. 14 when electors have to cast their ballots and name a new president.
Trump is attempting something that News4Jax political analyst Rick Mullaney, of Jacksonville University’s Public Policy Institute, says is much more difficult than what Al Gore attempted to do in 2000 in Florida by legally challenging the results of the presidential election.
In 2000, Mullaney says, that involved a single state and only hundreds of votes, and this time around, multiple states and tens of thousands of votes.
“The margin, the number of states and the significance of the burden of proof is all a way of saying this is a very difficult task for the president,” Mullaney said.
Mullaney says Trump will be given a grace period likely of a few weeks to make his case, but after that, he expects members of his own party to start pressuring him to drop out unless he has an unexpected victory in court.
“He’ll have that support in the near term. But in the days and the weeks ahead, I predict that’s going to change," Mullaney said. "The president will be given some leeway to make his claims, go to court to try to prove fraud, but there' some deadlines out there.”
Mullaney adds the math is not on Trump’s side, saying he would need to flip at least two states and maybe more depending on final results. That involves multiple lawsuits where each suit is a longshot.
Gary also says the amount of legwork that attorneys for Trump have to do is almost unprecedented because they need to gather enough concrete evidence of thousands and thousands of votes and be able to prove that enough ballots are flawed that a court would intervene.