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Trump’s next move? He declares he’ll sue but grounds are still unclear

Attorney for the President, Rudy Giuliani, speaks at a news conference in the parking lot of a landscaping company on Nov. 7, 2020 in Philadelphia. Giuliani echoed Trump's claims that the campaign will start "prosecuting our case in court" on Monday.
Attorney for the President, Rudy Giuliani, speaks at a news conference in the parking lot of a landscaping company on Nov. 7, 2020 in Philadelphia. Giuliani echoed Trump's claims that the campaign will start "prosecuting our case in court" on Monday.BRYAN R. SMITH/AFP via Getty Images

By midday Saturday network decision desks had seen enough to declare Joe Biden winner of the 2020 election. The outstanding vote counts in Pennsylvania and Nevada, which Americans had watched with obsessive fervor for four days, had dwindled to a trickle and margins for Biden widened. Celebrations erupted in many cities. World leaders offered their congratulations. President-Elect Biden scheduled his victory address.

The Trump campaign however refused to concede Saturday, instead declaring that “the election was far from over.” A barrage of e-mails landed in the inboxes of his supporters, all soliciting donations to a legal defense fund that would enable the president “to fight back.”

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“Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated,” Trump promised in a statement that echoed unsubstantiated claims of voter fraud made minutes earlier by his personal lawyer Rudy Giuliani and son Eric Trump at a press conference in Philadelphia.

The assurance of more litigation from Trump is unsurprising. For months, the Trump campaign and Republicans around the country have petitioned state and federals courts to throw out ballots they consider invalid amidst a historic surge of mail-in votes. Several cases filed post-election have received a chilly reception from judges in Nevada, Michigan, and Georgia, who promptly rejected them.

Election experts remained skeptical Saturday that any last-ditch lawsuit will succeed in changing the outcome of the race, particularly given Biden’s sizable lead over Trump in the Electoral College, with 290 current votes to Trump’s 214.

“I’ve yet to see any case with any realistic chance at affecting the results in one state, much less several,” said Justin Levitt, an election law expert at Loyola Law School.

The Trump campaign’s best bet for legal success could be in Pennsylvania, where Republicans have already asked the US Supreme Court to intervene twice, albeit without much success. The state court ruled that absentee ballots that were postmarked by Election Day and arrived through Friday were valid. The US Supreme Court deadlocked when first presented with the issue in late October, letting the state court decision to accept ballots through Nov. 6 remain in place.

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On Friday, the high court ruled 8-0 to segregate (but still count) the Pennsylvania ballots received after Election Day. There was little indication that election offices were not already doing this, but the order left open the possibility that the justices could vote to toss the ballots out later on.

Regardless of the Supreme Court’s final decision on the case, the number of ballots affected by such exclusion is small — believed to be between 3,000 and 4,000 votes. Therefore it would have little impact on the race given that Biden currently leads the tally in Pennsylvania by more than 34,000 votes. It’s possible the Trump campaign will file another lawsuit involving a larger batch of ballots, but election law experts largely believe Biden’s lead is insurmountable.

Even if the Trump campaign could somehow win Pennsylvania through litigation, Biden would still meet the 270 elector threshold through his wins in Nevada and Arizona.

Such slim prospects of legal success did not seem to matter to Trump campaign manager Bill Stepien on Saturday as he solicited contributions to Trump’s legal defense fund during a call with surrogates and allies, according to the Washington Post. The campaign has also sent out a flurry of e-mails and texts to supporters over the past four days calling for donations to the fund. A disclaimer accompanying those pleas stated that at least half of any donation could go toward paying down debt for Trump’s campaign.

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Several of Trump’s Republican allies — including Senator Marco Rubio of Florida, Former New Jersey governor Chris Christie and Senator Pat Toomey of Pennsylvania — declined to back the president’s allegations of fraud. Many other Republicans have remained silent. But a few have rallied to Trump’s defense.

“The media do not get to determine who the president is,” tweeted Senator Josh Hawley from Missouri on Saturday. “The people do. When all lawful votes have been counted, recounts finished, and allegations of fraud addressed, we will know who the winner is.”

Sen. Lindsey Graham of South Carolina pledged $500,000 to Trump’s legal defense fund and said that “the allegations of wrongdoing are earth-shattering” during an interview on Fox News on Thursday night. When Fox’s Sean Hannity floated the possibility that GOP state legislatures could select their own electors, Graham appeared to entertain the idea.

“Everything should be on the table,” he responded.

The question about electors elevated a somewhat fringe scenario. The Electoral College is actually just a group of 538 people, who typically vote in line with their states' popular vote. But it is theoretically possible for the governor and legislature, each representing a different political party in many pivotal states, to submit dueling slates of electors. One group would cast ballots in accordance with the popular vote; the other might vote for the defeated candidate. Congress would then decide which group to chose as legitimate. Since Republicans hold a majority in the Senate and Democrats hold a majority in the House, the dueling submissions could result in bicameral deadlock.

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“This is a horrible idea, one that should be morally repugnant to every American,” wrote Edward B. Foley, a constitutional law scholar, in an op-ed for the Washington Post. “It is a direct repudiation of the well-settled principle that each state’s electoral votes should be based on ballots cast by its citizens.”



Hanna can be reached at hanna.krueger@globe.com. Follow her on twitter @hannaskrueger.