I keep seeing circulating among well-meaning people a theory that because of the overwhelming voter fraud in the election, the Supreme Court is going to take up the case, throw out the election due to overwhelming voter irregularities, send it to the United States House of Representatives, and they will re-elect Donald Trump.
As someone who actually defended elections (and challenged them) based on vote fraud, let me explain how daunting it is to throw out a statewide election on vote fraud. The Presidential election is, for purposes of the law, a state election in fifty states.
First, it is important to acknowledge vote fraud happens. It happens in almost every election. Sometimes, it is innocent and not really fraud — someone casts an absentee ballot, forgets all about it, and is somehow able to also vote on the day of the election. Usually what happens is a local politician gets his buddies to pull shenanigans. We can assume shenanigans happened in Philadelphia because shenanigans always happen in Philadelphia.
But it is rarely enough to throw out even local races. Let’s take Trump v. Biden in Michigan.
Right now in Michigan, Joe Biden leads Donald Trump by 146,137 votes. If Republicans find 50,000 fraudulent votes in Michigan, Joe Biden would still lead by 96,137 votes. 37,706 people chose not to participate in the presidential election in Michigan, so the President’s lawyers have to either find 146,137 votes that they are 100% sure were cast fraudulently in the presidential race or they have to find 183,843 fraudulent total votes. Keep in mind that you cannot ask people how they voted because voter secrecy is sacrosanct in the American system.
That’s just Michigan. If they proved that, then they’d subtract 16 electoral votes from Joe Biden. Assuming Biden has Georgia, he’s still over 270. So now rinse and repeat for Pennsylvania.
In Pennsylvania, the turnout in Philadelphia was actually down from 2016. That has not gotten a lot of coverage, but the Philly numbers were down. President Trump lost ground in key Trump counties among voters who voted for him in 2016. That is why he is losing Pennsylvania.
Again, though, the Biden margin in Pennsylvania is right now 44,838 votes and growing as absentee ballots actually cast before election day are still being counted.
The President’s team can’t just throw out the votes in one state but must do the same thing in each state over 270 electoral college votes. It is not enough to show instances of voter fraud. The standard is voter fraud to an extent that casts doubt on the election. That standard means the margin of the vote if proven specifically or the margin of the vote + margin of votes not cast in that race. It is very tough and must be done state by state.
Absolutely, we are going to find voter fraud. It happens every election. The question is how much and I’ve never seen voter fraud in the hundred thousand vote range. Hell, I’ve never seen it in the 10s of thousands vote range.
The President’s team has the right to try. They are beginning to submit cases in court under oath, and we need to examine those and take them seriously. But it is not so simple as the Supreme Court will toss the race to the House of Representatives.