Over a week after Election Day, some election results are still up in the air, prompting Yale Law School students and professors to consider the paths forward.
As of Wednesday night, President-elect Joe Biden has amassed 290 electoral votes according to the Associated Press –– putting him over the 270 votes necessary to win the presidency –– while President Trump claimed only 217 votes. With 31 electoral votes remaining and Trump questioning the legitimacy of Biden’s victory without any basis, the 2020 presidential election has caused several Yale Law School affiliates to think back to the 2000 election, which was not decided until the Dec. 12 Supreme Court decision in Bush v. Gore. They denied the legitimacy of Trump’s election lawsuits — on which there are no factual bases — and reflected on this year’s election.
Despite the uncertainty, co-President of Yale Law Democrats for the 2019–20 term Duncan Hosie LAW ’21 firmly stated that Biden won the presidential election.
“The election outcome itself is phenomenal news, but only the start of a large amount of work ahead,” Hosie said. “It is essential that Trump be removed from office, but it can only be a starting point for building the type of progressive movement we need.”
Trump has not conceded the presidential race as of Wednesday night. His campaign has instead filed numerous lawsuits in Georgia, Nevada, Arizona, Michigan and Pennsylvania in an attempt to win the Electoral College.
Hosie called these lawsuits “outrageous and desperate efforts.” He said that because the lawsuits have “no sound legal claim,” they are politically, rather than legally, motivated.
“Trump still has, per [Monday night], 10 cases pending in some court or other, which he would like to bring to the Supreme Court,” senior research scholar Linda Greenhouse LAW ’78 said. “Everybody has been holding their breath –– will there be another Bush against Gore –– but there won’t be.”
Greenhouse covered the Supreme Court for the New York Times from 1978 to 2008. She said that the Trump campaign’s lawsuits “have no bearing” and that Trump “doesn’t have a case,” so none of these lawsuits will make it up to the country’s highest court.
Law professor Samuel Moyn similarly said he does not believe the Supreme Court will hear any of the “decisive” cases — those that may alter the outcome of any called races — the Trump campaign has brought to court.
“The gap in votes in all the close states is too big for the Supreme Court to be expected to play a role, though Donald Trump is clearly pursuing a feckless litigation strategy,” Moyn wrote in an email to the News.
Last week, law professor Stephen Carter LAW ’79 wrote an opinion piece for Bloomberg titled “Democrats counted too heavily on ‘Trump fatigue.’” He argued that personal attacks on the president and left-wing slogans turned the election –– which could have been a landslide victory –– into a “nail-biter.”
Carter wrote that the Democratic Party assumed they could win by appealing to voters who were “so fed up” with Trump that little would prevent them from voting against him. However, he argued, public policy stances played a more significant role than Democrats initially believed.
“While Democrats won easily among voters who considered the candidate’s ‘personal qualities’ the most important factor, voters who prioritized the candidate’s position on the issues over character leaned Republican,” Carter wrote in the column. “And there were a lot more of the latter — 73% vs 23%.”
According to Carter, this reliance upon “Trump fatigue” contributed to the down ballot results, where Democrats lost at least six seats in the House and “look unlikely” to win control of the Senate.
Hosie agreed that “Trump fatigue” was one of the factors that contributed to Democrats’ poorer-than-expected performance in congressional races. But he added that, while he felt the election was “much closer than it should have been,” the high voter turnout –– which he said is a sign of a healthy democracy –– is very much worth celebrating.
“I hope people who became involved in this election, whether they were phonebanking or volunteering, stay involved during the Biden administration because even though it’s great news that Trump lost, there’s so much work ahead and we need people to stay part of the process,” Hosie said.
The Associated Press called the presidential race for Joe Biden on Saturday morning.
Julia Brown | julia.k.brown@yale.edu