As many Americans are aware, Donald Trump has gone to great lengths to cast doubt upon our recent Presidential election by claiming widespread fraud and that it was a “rigged” election.
After losing nearly all of the lawsuits he and his supporters have brought due to their inability to present any credible evidence of actual fraud, he has requested to intervene in a lawsuit brought before the United States Supreme Court by the Texas Attorney General seeking to block the electors from Georgia, Michigan, Pennsylvania, and Wisconsin from casting their votes (that is 62 electors), thereby bringing President-Elect Biden’s electoral vote total below the 270 vote threshold needed to win the election.
There are plenty of news sources reminding their readers that there is absolutely no credible evidence of any fraud of conspiracy to “rig” the election, so I will not focus on that. Nor will I focus on the hypocrisy of an allegedly corrupt Attorney General bringing a lawsuit alleging fraud. I will also not waste time pointing out that the sheer number of people necessary to be involved in a conspiracy of the size and scope that Trump is alleging would not only ensure that there would be at least one “weak link” somewhere in the chain that his team could discover and exploit, but would also constitute enough people to, wait for it, cast enough legal votes for Joe Biden to win. If everyone is actually out to get you, maybe that just means you don’t have enough support to win an election.
Having said all of that, I want to focus on the Texas AG’s lawsuit for a moment.
Now, I am an attorney, so I have some training and experience with respect to lawsuits. Having said that, I am not an election law attorney and I cannot claim to be an expert on what I am about to say. I am just thinking through ideas here. Aside from that, what we are talking about here is uncharted territory. Yes, we have Bush v. Gore from 2000 that reaffirms the United States Supreme Court’s clear directive that the will of the voter is paramount in election law and that the courts should not step in to overturn that.
What if it does, though? What if the United States Supreme Court grants the relief the Texas AG is seeking and blocks the electors of those four states from voting?
Okay, under normal circumstances, how does the electoral college work? Broad strokes here, but there are 538 delegates to the electoral college. Each state gets a number of electors equal to its number of representatives in Congress (2 senators + the number of representatives based upon population). In the states implicated in this lawsuit, Michigan and Georgia each have 16, Wisconsin has 10, and Pennsylvania has 20 for a total of 62.
Generally speaking, a candidate has to have a majority of electors vote for them in order to win. Since there are 538 total voters, that number divided by 2 is 269. Therefore, if a candidate receives 270 votes (one more than half of votes cast), they win the election. If you were to remove the 62 electoral votes from the four states at issue here, President-elect Biden would only have 244 electoral votes (306 minus 62). Well below the threshold necessary to win.
Or is it?
If those votes are simply invalidated and not somehow given to Trump, that changes the threshold. Remember that we are not looking at 270 as some magical and inviolable number here. 270 is simply a majority of the total votes cast, or 1 more than half of the number of votes cast. If 62 fewer votes are cast, that changes the threshold. Take 62 votes out of the 538 total and the total number of electoral votes cast become 476. Half of that is 238, meaning that 239 votes would be all that is necessary in order for a candidate to win.
President-elect Biden would still have 244 electoral votes, assuring him an electoral majority and victory in the election.
Also, think of it this way. Currently, Trump has 232 electoral votes. Even if you subtract 62 electoral votes from President-elect Biden’s total, he still has 12 more electoral votes than Trump. So he has both more votes than Trump and a majority of electoral votes cast.
Therefore, even if the Texas Attorney General’s lawsuit is successful at blocking the votes from these four states, Trump still cannot win the election.
If, however, the Texas Attorney General is seeking to have the electoral votes of those states awarded to Trump instead of Biden (an even more difficult argument to make, in my opinion), that is another story. I should point out that, as I understand it, one of Texas’s grounds for seeking relief is that these four states expanded access to mail-in voting this year. Of course, so did Texas and its 38 electoral votes, so maybe they should be invalidated, too? And is that more hypocrisy from the Texas AG? So I have difficulty believing that this suit has merit, even if it were not moot. It is moot, though, giving the Supreme Court one more reason to deny Texas’s request for lack of standing.
There are tens of millions of Americans who are upset with the result of every Presidential election in this country. Democrat, Republican, or third party supporter, nobody enjoys 100% support of the American people. In normal circumstances, one candidate wins and one candidate loses. The party of the losing candidate licks their wounds, regroups, and starts preparing for the next election. The Democrats did that four years ago and the Republicans will do that this year.
What is happening in this country with the bald attempts by people in positions of political power to overthrow the will of the people just because they lost is not okay. It is an abuse of power, but, more importantly, it is a violation of the trust that we place in them. That is not how Democracy works.
Whether there is legal merit to the Texas AG’s lawsuit or not (and I cannot see how there is), it still will not affect the outcome of the election. Take away the electoral votes of Georgia, Michigan, Pennsylvania, and Wisconsin and Joe Biden still wins the election.