By Mark Niquette
President Donald Trump's path to reversing the election result has nearly closed after all the key battleground states certified their vote totals and took steps to appoint electors ready to formalize Joe Biden's victory.
Trump continues to hurl unsubstantiated accusations of voter fraud on Twitter, but he is now left with only a few extremely improbable options to derail Biden's inauguration, with the next step — the casting of votes by electors to the Electoral College — set to happen in each state on Dec. 14.
Arizona and Wisconsin became the final contested battleground states to certify their presidential election results on Monday, making the results there harder to overturn. There's a recount underway in Georgia that isn't expected to change the results. A recount in two Wisconsin counties demanded by the Trump campaign ended up adding to Biden's margin of victory in the state.
Theoretically, the courts could still step in. But almost all of the cases filed so far by Trump and his allies have been rejected for lack of actual evidence needed to invalidate legally cast votes.
Even as Trump rejects the outcome, the U.S. General Services Administration has acknowledged Biden as the apparent winner and the president has called on his agencies to cooperate with the transition. Biden is moving forward to assemble his administration, with his economic team set to be introduced on Tuesday.
The president's last gasp may be trying to persuade Republican legislators in multiple states to ignore the popular vote and appoint Trump electors, but that wouldn't stop Biden's inauguration, said Edward Foley, director of an election-law program at Ohio State University who has studied disputed elections.
"It's checkmate in terms of the various chess moves on the board, but they could try go for other moves anyway," Foley said. "Normally when you see that it's going to be checkmate, you sort of concede."
If all legal challenges are resolved by Dec. 8, the so-called safe-harbor deadline, Congress must accept a state's electors based on certified results. But even if there are still outstanding disputes in some states, the Biden electors in each state will cast their votes on Dec. 14, and there's no reason to think Congress won't accept them when it meets on Jan. 6 to count electoral votes, Foley said.
That hasn't stopped Trump from insisting he can still win and raising money off the furor. Rudy Giuliani and Jenna Ellis, his personal attorneys, have been holding public meetings with Republican lawmakers in Pennsylvania, Arizona and Michigan highlighting what they say are election irregularities, statistical anomalies, and rejected claims of voting machine manipulation as part of an unproven Democratic conspiracy to steal the election.
"President-elect Biden's clear win in every state that Donald Trump's campaign has contested has now been certified by a bipartisan array of election officials," Biden spokesman Michael Gwin said. "As has been clear for weeks, Joe Biden will be sworn in as president come January 20, 2021."
Trump's campaign and his allies are still filing lawsuits to challenge the election results, and more are expected — especially in Wisconsin and Arizona, which require results to be certified before the election can be contested.
On Tuesday, the Trump campaign filed a lawsuit in the Wisconsin Supreme Court challenging the state results, primarily by attacking practices with absentee ballots in an election system that state officials have repeatedly defended.
Many of the other claims haven't been presented in court, and those that have — such as Republican observers saying they weren't able to effectively monitor the counting of mail-in ballots — have been almost universally rejected for lack of evidence of actual fraud to disqualify tens of thousands of votes.
"Although they allege massive fraud outside of court, when they're forced to make their argument in court, they can't quite build the case that they need to in order to justify having judges completely overturn the result — because that's ultimately what they're asking for," said Nathaniel Persily, a Stanford University law professor and election-law expert.
Trump's legal team has mused about getting a case before the U.S. Supreme Court with its newly minted 6-3 conservative majority that could overturn the election, but even Trump said in an interview Sunday on Fox News that "it's very hard to get a case to the Supreme Court."
"Let's be clear: The effort to change the election outcome in the courts is over and has been for a long time," said Richard Pildes, a New York University professor of constitutional law.
Giuliani and Ellis have been pleading with Republican lawmakers to use a legal theory to declare that the election has "failed" and appoint slates of Trump electors to compete with the duly appointed Biden ones — despite the fact the Nov. 3 popular vote has already been set as the method for choosing electors.
"This in no way impacts the state legislature's ability to take back the proper selection of delegates," Ellis said on Twitter on Monday after Democratic Arizona Secretary of State Katie Hobbs and Republican Gov. Doug Ducey certified Biden's victory in the state.
But that would require entire Republican delegations in at least three states to ignore the popular vote — a dubious legal and political step that GOP leaders in Michigan and Pennsylvania have already said they won't take — with no expectation the Trump electors would be accepted by a Democratic-controlled House and a Senate with several Republicans who have acknowledged Biden's victory, Persily said.
"For all practical purposes it is over, but they could try to create disorder either in the state legislatures or even on the floor of Congress," he said. "But it's not going to amount to anything."