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Trump has more power as candidate than sitting president in vote lawsuits

Dozens of people calling for stopping the vote count in Pennsylvania due to alleged fraud against President Donald Trump gather on the steps of the State Capital on November 05, 2020 in Harrisburg, Pennsylvania. (Photo by Spencer Platt/Getty Images)

President Trump’s attorneys have now filed lawsuits in three states — Pennsylvania and two that have been dismissed in Georgia and Michigan — in an attempt to prevent votes from being counted. But does the president actually have that power?

Lisa Manheim, an associate professor of law at the University of Washington, told KIRO Radio’s Gee & Ursula Show that President Trump actually has more power in these lawsuits as a candidate than he does as the sitting president.

“When it comes to the powers that the president has as the sitting president, the answer is that he essentially has no power at all,” she said. “And by that I mean, in his official capacity as president, he does not have the power to affect the way the votes are counted. He doesn’t have the power to declare who’s a winner. He doesn’t have the power to raise allegations and then have things change based solely on those allegations.”

“However, as a candidate, [Trump] has the ability to bring lawsuits, just like in this case,” she added. “Joe Biden would also have the ability to bring lawsuits if he wanted to. And once a candidate brings a lawsuit, then there are legal processes in place for resolving those lawsuits. So that’s what we’re seeing right now.”

Manheim says she personally hasn’t seen anything that would suggest there’s a legal claim that is likely to make a difference going forward in this election.

“Things might change. New facts may emerge. But thus far, from a legal perspective, everything is looking pretty routine,” she said.

However, there is a possibility that this process could extend out for weeks or even months.

“The process for electing a president is pretty complicated, … I mean, it’s well established and the rules are set, but they are complicated,” Manheim said. “The reason why it’s so complicated is, in one sense, because we don’t have our national government running the elections for president. Instead, they’re run by all the separate states.”

This means that, in a sense, there are 51 separate elections for the president occurring on Election Day in the United States, including Washington, D.C.

“Each of those separate states has its own rules in place to dictate how the process goes,” Manheim said. “That being said, in most states, the overarching process is going to look the same, which is that what we’re seeing thus far are all unofficial results.”

“Then there’s going to be what’s called a canvas, and in the canvas, the election officials correct mistakes and they make sure the numbers all line up,” she continued. “And then we proceed to the certified totals, and it’s at that point that you may have a recount going forward. You could have an election contest brought in the court. The deadline by which this all needs to be resolved on the one hand is going to be set by each state’s laws. But the federal government has also given essentially an incentive to the states to get it all done by Dec. 8.”

Manheim does not think the litigation will extend beyond Dec. 8, but it could be resolved before then.

“Essentially, [the incentive is if] a given state has its presidential electors resolved by Dec. 8 this year, then there’s going to be more deference given to the state’s conclusions on that ground than if the states go beyond the Dec. 8 deadline,” she said. “… But in all likelihood, the deference would be given to the states anyway. The harder deadline comes on Dec. 14, and that’s because that’s the date when the electors across the country all convene and actually, formally vote on who’s going to be president.”

The complications of these lawsuits filed by the president arise as every state has different rules, which is not at all unusual.

“In fact, that’s essentially how our system is structured to allow those different rules from state to state,” Manheim added.

In Pennsylvania, the state has said it will count ballots until Friday because voters were told they had three additional days. Manheim explained that the controversy is not so much about whether or not to count ballots sent by Election Day but rather to count those received by Election Day.

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“Because that always happens, right? So in every state, sort of by practical necessity, you have to keep counting ballots after Election Day given that … these are actually people and machines going through the process of ballots, sort of reading the ballots, tallying the ballots, it just takes some time,” she said. “The legal controversy that’s been going on for a while in Pennsylvania relates to whether somebody has cast a ballot by putting it in a mailbox prior to Election Day, but then the government in Pennsylvania has not received the ballot by Election Day.”

When it comes to the count, Manheim says it is clear under the law that any ballot that was received by Election Day is eligible and should be included.

“The sort of ongoing legal dispute [in Pennsylvania] relates to these ballots that were actually received by the government after Election Day,” she explained.

Listen to the Gee and Ursula Show weekday mornings from 9 a.m. – 12 p.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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