Election lesson learned: Voters, not courts, decide elections


During the 2016 presidential campaign, then-candidate Donald Trump acknowledged that litigation was a “tactic” proven “successful” for him and his businesses over the years. A contemporary review of Trump’s legal filings concluded that before entering the White House, the president often turned to the courts “to distance himself from failures and to place responsibility on others.”

Now, after most media outlets called the 2020 race for former Vice President Joe Biden, the president is using the same litigation playbook that has served him well in the past. His legal team filed a slew of lawsuits across the country, alleging a number of dubious allegations under the guise that the president did not lose re-election — fairly, at least.

But, unlike the days of suing casino patrons and distancing himself from poor investments, Trump’s post-election suits have not served him well, and the current spree of litigation has made clear that judges are not eager to have their courtrooms contribute to political PR campaigns.

The Trump campaign’s legal bender focused on some of the tightest state races, including Arizona, Georgia, Michigan, and Pennsylvania. Many of these legal disputes, though, did or are doing little to change the ultimate result. In Arizona, for example, the Trump campaign alleged that a number of “overvotes” — instances where a voter selects more candidates than permitted — could “prove determinative of the outcome of the election.” Days later, though, the campaign dropped the case, acknowledging the state’s 191 potential “overvotes” could not overcome Biden’s 10,000-vote lead.

In other states, the campaign’s legal claims were met with raised judicial eyebrows. Two days after the election, attorneys for the Trump campaign alleged that observers were barred from Pennsylvania ballot counters, violating state law. But when Judge Paul Diamond, nominated by President George W. Bush, asked how many Republican observers were in the room, the president’s attorney conceded that it was “a nonzero number.”


“I’m sorry, then what’s your problem?” the judge replied. The suit was dismissed.

On the same day in Michigan, the campaign alleged ballot-counting misconduct in Detroit. In a lawsuit filed in state court, attorneys submitted an affidavit from one poll watcher who alleged she was told other poll watchers were instructed to improperly change ballot dates. A sticky note saying “entered receive date as 11/2/20 on 11/4/20” was submitted as supporting evidence. After skeptical questioning by Judge Cynthia Stephens during a court hearing, she later wrote an opinion concluding that the affidavit was inadmissible hearsay, and the sticky note was “vague and equivocal” evidence of any wrongdoing.

Back in Pennsylvania, the 3rd Circuit Court of Appeals held that a group of plaintiffs — four registered voters and one Republican congressional candidate — did not have standing to challenge the constitutionality of counting late-arriving ballots. Writing for the court, President Bush nominee Judge D. Brooks Smith explained that the decision was reached in consideration of the “proposition indisputable in our democratic process: that the lawfully cast vote of every citizen must count.”

Unfortunately, the Trump campaign’s playbook has been fairly transparent. Despite a number of legal setbacks, the president’s team seemed to believe they have a judicial ace up their sleeve. As one of Trump’s legal advisers told Fox Business, “We’re waiting for the United States Supreme Court — of which the president has nominated three justices — to step in and do something.”

Despite the Trump campaign’s wishful thinking, do not expect a Bush v. Gore redux. Unlike the 2000 campaign, where about 500 votes separated George W. Bush and Al Gore in Florida, the president is still behind by tens of thousands of votes in several contested states. Moreover, observers should not subscribe to the same political cynicism as Trump’s legal team. There are numerous examples of conservative justices — including those nominated by the president — ruling against him or his administration. And as election cases across the country continue to get filed and inevitably are dismissed or withdrawn, observers should not expect the president’s flailing legal theories to get special consideration.

As we step back and consider the political lessons of this election, do not forget the courts. When pressed the most, the courts — across geography and ideology — allowed voters, rather than judges, to decide our election.

Anthony Marcum is a resident fellow at the R Street Institute (, a conservative and libertarian think tank in Washington, D.C. He wrote this originally for


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Anthony Marcum

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