Weeks after the 2020 election, President Donald Trump has yet to formally concede, choosing instead to file lawsuit after lawsuit to challenge the outcome — including ones that aim to block certain states from certifying the results — all while continuing to make unsubstantiated claims that there was extensive voter fraud. The Brennan Center’s Max Feldman spoke with Tim Lau to explain the rationale behind these lawsuits, how they reinforce racialized voter suppression, and what it all means for the health of American democracy.
What’s going on with the Trump team’s attempts to block the certification of election results?
Certification is the process by which state officials put their official stamp on the election results. Based on that process, they will deliver certificates of election to winners of the various offices that are subject to certification. When it comes to the presidential race, there is an intersection between the certification process in the states and the federal Electoral College process. So, these states certify the electors according to their state law, but there are a number of federal deadlines for resolving any controversies over the appointment of electors. This year, that deadline is December 8, and the electors have to meet on December 14.
Additionally, the U.S. Constitution grants states the authority to determine how to appoint electors. And pretty much all of the states have determined to do that based on the popular vote for the president in the state. But despite the existing rules, some Trump supporters have suggested that state legislators can just discard the voters’ will and appoint the electors of their choosing. That is wrong and would be unlawful but appears to be part of the thinking with some of these lawsuits.
Looking at the lawsuits themselves, suggesting that there’s a legal strategy here would be a very generous way of putting it. The legal claims that are being brought are extraordinarily weak. And that’s why so many of these lawsuits have been so quickly thrown out by state and federal courts, including many lawsuits that have been withdrawn by the plaintiffs that brought them.
What’s really going on here is more of a political and disinformation strategy. The Trump campaign seems to want to use these lawsuits as a hook for what they’re trying to accomplish in the political and public communications realm. They’re trying to convince their supporters that the election was illegitimate. And they seem to be trying to either delay certification so that it extends beyond the federal deadlines or to prevent certification such that there’s some justification for state legislatures to step in and essentially throw out people’s votes.
What else can we learn based on how the courts have responded so far?
I think the most notable thing about the lawsuits is that in public outside of the courtroom the campaign and other plaintiffs are suggesting that there was widespread fraud, irregularities, other problems with the election, and that the remedy should be to essentially toss out the results. But in court, they’ve been unable to substantiate those claims in really any serious way. And so, you’re seeing the cases dismissed for a variety of reasons. Some of them are on technical legal grounds. But even there, it’s very clear that they’re not able to substantiate the very broad claims and the very broad remedies that they’re seeking — essentially, the invalidation of the election. They’re really only pointing to sort of very minor problems, if any problems at all, that can’t possibly justify invalidating people’s votes.
How do the Trump team’s efforts reinforce broader patterns of voter suppression we’ve seen in recent elections?
Racialized voter suppression has been a feature of our system for a very long time and sadly it continues today. We continue to see obstacles to the ballot box that disproportionately impact Black, Latino, and Native Americans. So, it is disappointing but not surprising that these latest disenfranchisement efforts are disproportionately aimed at Black voters. You see people like Rudy Giuliani claiming without evidence that places like Philadelphia or Detroit (both cities with large Black communities) have consistently had massive fraud, and to try to use those claims to throw out votes of the people who live in those cities.
It’s just an egregious example of the efforts to disenfranchise people of color that we see frequently in our voting system. That’s one of the reasons why when the Voting Rights Act was passed it included a preclearance mechanism — because the drafters recognized that racialized voter suppression can take myriad forms.
What should we make of Trump’s meeting last week with senior Republican legislators from Michigan?
Trump seemed to be contemplating an effort to pressure state lawmakers into throwing out the voters’ decision and replacing it with the state legislature’s partisan decision. Following the meeting, the lawmakers released a statement indicating that they weren’t going to go down that route — which was really their only option under the law. Michigan awards its electors based on the results of the popular vote and you can’t change the rules because you don’t like the outcome of the election.
Even though that particular effort seems to have failed, the fact that it’s even being attempted is really disturbing for the long-term health of our democracy, as is the fact that lawmakers would meet with the president in the White House presumably to hear out this potential plan. And it’s part of a broader effort to undermine people’s faith in the election system and in our democracy. Trump seems to be stoking this view among his supporters that our incoming president is illegitimate, that there are widespread and fundamental problems with our election system, which there are not. And that, too, is incredibly damaging. This democracy is only going to work if we have faith in our institutions and in each other. Trump’s efforts erode that kind of faith.
It underscores the need for democracy reform, especially in terms of the legal rules that govern how our democracy operates.
What would help restore confidence in the electoral process and mitigate future attempts to delegitimize it?
The Brennan Center has been pushing for Congress to pass the For The People Act and the John Lewis Voting Rights Act, which would increase participation in our democracy, reduce unnecessary obstacles to participation, improve the security of the system, and increase people’s faith that the system is working. Both of those bills are critical to rejuvenating our democracy writ large.
In addition, eliminating the Electoral College would solve some of the problems connected to the recent attempts to block certification. Short of that, the federal law that governs the Electoral College and the process for counting electoral votes is badly outdated. Reforming that process — for example, pushing the deadlines for selecting and resolving disputes over the electors closer to Inauguration Day instead of having them start in early December — would also help to avoid some of the pressures that can arise in close elections. That’s something that Congress could do on a bipartisan basis.