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On The Case

Trump’s election litigation: boon or blow to public faith in the court system?

(Reuters) - President Donald Trump’s campaign filed its most sweeping post-election lawsuit on Monday night in federal court in Scranton, Pennsylvania, alleging that state election officials devised and executed “an illegal two-tiered voting system” that unconstitutionally favored mail-in voters over those who voted in person. Reuters’ report on the new complaint noted that the president’s cases challenging election results have so far not fared well, with judges in Michigan and Georgia dismissing suits and experts predicting that Trump’s legal campaign has “little chance of changing the election result.”

Republican leaders have staunchly defended President Trump’s apparently quixotic litigation effort. On Monday, Republican Senate Majority Leader Mitch McConnell of Kentucky endorsed the president’s refusal to concede to President-elect Joe Biden, arguing on the Senate floor that Trump has “every right” to pursue allegations of voting illegalities. Attorney General Barr, meanwhile, instructed Justice Department prosecutors to investigate “substantial” allegations of election irregularities. Barr’s letter to DOJ lawyers lent credibility to the president’s attacks on the integrity of the election, even though, as Reuters pointed out, Trump and his allies have so far offered no evidence to back their allegations of widespread voter fraud.

There has been pushback. The head of DOJ’s Election Crimes unit resigned Monday night in response to Barr’s letter. More than a dozen former Republican U.S. Attorneys last week publicly criticized the campaign’s early election suits. And, according to The New York Times, some lawyers at Jones Day, a mainstay of the president’s legal team, have begun to worry that the Trump campaign’s post-election litigation is undermining the rule of law.

I’ve become jittery about the effect of this post-election litigation on public faith in the court system. If the president’s legal challenges fail, as they seem destined to do unless dramatic new evidence of fraud emerges, will the 70 million Americans who voted for Donald Trump decide that the court system is rigged? If courts end up confirming Joe Biden’s victory, will Trump voters feel assuaged about the legitimacy of the process? Or will that outcome delegitimize the courts in the eyes of Donald Trump’s base?

I asked those questions Tuesday to Rebecca Roiphe, a law professor at New York Law School who also happens to have a Ph.D. in American history. Roiphe specializes in scholarship about the rule of law in this country. She and co-author Bruce Green of Fordham Law School argued in a op-ed Monday for The Hill that the president’s lawsuits challenging election results may actually be a boon for American democracy. Mitch McConnell cited the op-ed in his Senate speech Monday.

Roiphe’s first point: By using state and federal courts to challenge election results, President Trump is signaling his faith in the system to give him a fair hearing. The president’s Twitter feed and public statements may feel incendiary and destabilizing, Roiphe said. But by going to court to air his grievances, she said, the president is subjecting himself to institutional curbs.

“Our institutions are designed to protect democracy,” Roiphe said. “They put the brakes on.”

They also arbitrate truth. That’s Roiphe’s second point: Ultimately, courts will weigh the evidence produced by the Trump campaign, not the rhetoric from the president’s Twitter account. “The best chance there is to counter (that rhetoric) is the court system,” Roiphe said. Democrats, she said, will be best served by defeating Trump in court instead of criticizing him from bringing cases. It may be nerve-wracking to wait for the process to conclude, she said, but if the courts confirm Biden’s victory, the public can be confident that President Trump had a chance to try to prove his allegations but couldn’t produce adequate evidence to overturn the election results.

“In the end, (Democrats) can say, ‘You had your day in court,’” Roiphe said. “That’s what our system is supposed to do – you take your case to court and that’s where the truth comes out.”

That brings me to Roiphe’s third point: Court rulings against Trump, she said, will likely persuade some of the president’s voters the Biden won the election fairly. Other Trump supporters, she acknowledged, may well question the legitimacy of rulings against the president – but such supporters were probably already skeptical of the court system and other institutions. Given that quiet concession was never going to be President Trump’s response to Biden’s election, Roiphe said, post-election litigation is the most effective way to convince his supporters of the lawfulness of the outcome.

Are you convinced? I still worry that Trump’s most ardent supporters will reject any result but a win for him, so court rulings against the president will serve only to damage their faith in the system that legitimized a Biden victory. Roiphe agreed there’s cause to worry, but also reason for hope.

After all, Roiphe said, the country’s essential structures have remained intact despite four years of convention-battering by President Trump. “That’s remarkable,” Roiphe said. “It’s a tribute to the resiliency of our institutions.”

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