As you’ve likely heard, President Trump has alleged that the 2020 election was stolen from him and was filled with fraud. As you’ve also likely heard, Trump has filed a number of lawsuits in an attempt to overturn the election. Many are wondering whether Trump will be successful. The straight answer: Trump and his legal team have three hurdles they must overcome, and each one seems insurmountable.
In the “court of public opinion,” anyone can say whatever they want, whether it’s true or not. People in the court of public opinion often believe things that are said, absent any proof. Evidence isn’t required in that forum. However, in a court of law, evidence is mandatory before a judge accepts what is being alleged.
One of Trump’s greatest hurdles is coming up with any evidence to support what he is alleging. Several of the judges who dismissed some of his recently filed lawsuits have done so primarily, if not exclusively, because evidence proving the allegations wasn’t produced.
Since Trump made the allegations, key officials in the very jurisdictions in which Trump alleges impropriety have given a number of media interviews. They’ve credibly described in detail how they ran a fair election. They detailed how both Republicans and Democrats worked side by side to ensure that the will of the people was carried out absent impropriety. In some places, surveillance video captured a fair vote count process. Based upon what we know and what we are learning about the specific process, Trump will likely be unable to produce evidence to substantiate his claims of fraud.
2. SUFFICIENT AND CREDIBLE EVIDENCE
Solely producing any evidence in a court of law isn’t enough for Trump to prevail. To succeed, Trump must produce evidence that that meets a “sufficient and credible” legal standard. “Sufficient” refers to the quantity of evidence that is required to adequately meet the legal threshold to prove what is being alleged. “Credible” means that it is trustworthy in the eyes of a judge. Many of Trump’s supporters would encourage us to wait and see what, if anything, Trump produces, and then analyze it at that point. However, let’s say he produces, for example, a sworn statement from a poll worker alleging that he/she thinks there “might have been some fraud.” That likely isn’t sufficient or credible. Don’t expect any judge to find merit in Trump’s allegations.
3. OUTCOME WOULD BE DIFFERENT
The toughest of the three hurdles for Trump to overcome will be to prove that the alleged fraud impacted the election to the extent that the outcome would be different. That means that if he’s able to prove fraud — which, again, is itself unlikely — he still must prove that the election results would be different. That means he must prove in virtually every disputed state that the total contested ballots exceeds the margin of victory. That will prove to be virtually impossible, especially in a state like Pennsylvania, where the latest results have Biden ahead by approximately 54,000 votes.
I’m reminded of a criminal case out of Houston in which Calvin Jerold Burdine, 47, was sentenced to death by a jury in 1984. During Burdine’s appeal, lawyers for the state didn’t dispute that his defense lawyer slept during parts of his trial. And yet, a Texas federal appeals court upheld the conviction, alleging that the defense attorney didn’t sleep during “critical stages” of the trial and that Burdine’s appellate lawyers failed to show that his trial attorney’s naps had an impact on the trial’s outcome. The bizarre ruling was later overturned, but it nevertheless serves as a reminder that even if a court finds something wrong in the process, there still must be proof that it affected the ultimate outcome. Similarly, in the unlikely event that Trump can prove his allegations with sufficient credible evidence, he still must prove that the outcome of the election would be different. With Joe Biden’s leads of tens of thousands of votes in Pennsylvania, Michigan and Wisconsin, he will not be able to do so.
Many who believe this litigation will succeed point to the 2000 presidential election as support. However, this election is vastly different from Bush v. Gore, decided two decades ago. In that case, the margin between the two candidates was merely 537 votes in Florida, a single disputed state. In the current election, the margins in every state except Georgia are too significant to change the outcome.
Trump’s chance of prevailing with his current litigation is so low, so remote, it approaches almost no real value. Still, some of you may, like Jim Carrey in that scene in “Dumb and Dumber,” find your self saying, “So you’re saying there’s a chance!” What I’m saying is that while it’s theoretically possible, it’s not going to happen. The evidence isn’t there and, even if it was, it won’t change the outcome of the election.