The Trump campaign has asked for “patience” while it attempts to substantiate their claims with a barrage of lawsuits, while the Biden team has deemed them “theater.”
“There is no conceivable path by which the president’s lawsuits and recount efforts could yield him enough votes to change the result of the election,” said Kate Shaw, a Cardozo law professor and ABC News legal analyst.
“The effort is not only futile but becoming more dangerous by the day, as the continued refusal to acknowledge the election’s results stokes public doubts about the legitimacy of our electoral system, without any basis whatsoever,” she added. “Prolonging the process is also causing material harm to President-elect Biden’s ability to begin a full transition, which could severely compromise our national security.”
Even if Trump were to win some legal challenges over allegedly “illegal” ballots, there are too few disputed and outstanding ballots for him to ever come out on top.
Here’s a reality check.
Outstanding votes can’t catch up
President-elect Biden has well-eclipsed the necessary 270 electoral votes and is currently leading Trump by more than 5 million votes nationally, with votes still left to be counted.
Only three states have yet to be projected by ABC News: Georgia and Arizona — where Biden is leading, and North Carolina.
Trump has said Biden is “rushing to falsely pose as the winner”– even after falsely declaring victory twice for himself — and has criticized media organizations for calling the election before all votes were certified.
But network decision desks make projections every election and every year hold off on projecting a winner until they can determine that, even with the outstanding ballots left to count, the candidate behind has no path to catch up.
“We haven’t seen flip flopping from the media this year,” said Deb Otis, senior research analyst at Fair Vote, a nonpartisan nonprofit on election reform, explaining why 2020 is no 2000. “The networks were conservative when determining when to call races, which is why it took many days, something they warned of. And I think their confidence in the vote can give us confidence as well.”
Notably, Trump had no issue with the news media projecting his win in 2016 before key states had certified their votes, which can take days or even weeks after an election.
Officially, election results are certified once every vote is counted and all outstanding legal issues are sorted out. The deadline for this varies by state with most by the end of November, so Electoral College electors can meet on Dec. 14.
There are still a few hundred thousand ballots to be counted, but there aren’t enough for Trump to overtake Biden’s lead in an election which saw a record-shattering turnout.
Recounts are highly unlikely to change election outcomes
It is rare for an election recount to change the outcome.
According to a report from Fair Vote including data on 20 years of recounts, there have been 31 recounts in 5000 statewide elections since 2000, and only three of them resulted in election reversals. In those three, the original margin of victory was less than .05%.
“Given the unlikelihood of recounts to change election outcomes and the margins by Biden is leading right now, it’s an extreme long shot for the Trump campaign,” said Otis. “The margins have to be very slim in order for a change in outcome to even be plausible,” she added. “That’s not the case in 2020.”
In each state Biden won or leads in, his advantage is more than 10,000 votes according to counts so far — a heavy burden for Trump to overcome.
But he’s aiming to try.
The Trump campaign has vowed to pay the $3 million filing fee for a recount in Wisconsin, where Biden leads Trump by roughly 20,000 (just under the 23,000 votes that allowed Trump to topple Hillary Clinton in the state in 2016).
A recount in Wisconsin in 2016, paid for by Jill Stein’s campaign, resulted in a net gain of just 131 votes for Trump.
As the Trump campaign has hinted at more recount requests to follow, Otis noted that Biden is leading in most of those battleground states by tens of thousands of votes with a lead in Michigan at nearly 150,000 votes.
“Based on our findings, it would be an extreme long shot for the recount to change the outcome in any one of these races, let alone in multiple states,” she said, adding the largest shift they’ve recorded in two decades from a recount changed the margin by roughly 2,000 votes.
The most memorable presidential election recount happened in 2000, Bush v. Gore. That recount shifted the margin by 1,247 votes — significant in a race decided by one state and just 537 votes more votes for Bush — but still not enough to flip the outcome.
Barrage of lawsuits lacking merit
While the Trump campaign wages legal battles in multiple battleground states as the presidency slips from Trump’s grips, it has been unable to provide widespread evidence of voter fraud that would be needed to overturn the election results.
“Look, what we are asking for here is patience,” said White House press secretary and Trump campaign spokesperson Kayleigh McEnany at a press conference Monday, telling reporters to give them time to substantiate their claims.
“Is it going to be enough? No. It’s going to take time,” said Republican National Committee Chairwoman Ronna McDaniel before correcting herself. “Is it going to be enough? We don’t know. Is it going to take time? Yes.”
While they’ve raised some anecdotal claims, the Trump campaign has failed to present widespread allegations of voter fraud, legal experts say. Several who reviewed the lawsuits filed by last week said they saw no evidence of fraud. And many told ABC News they puzzled over the ultimate objective of cases because they did not seem destined to find the president significant numbers of votes or change the election’s outcome.
“I don’t see any real legal strategy here,” said Wendy Weiser, who directs the Democracy Program at the Brennan Center for Justice at NYU School of Law. “They look more like public relation stunts meant to create a false impression that the election is filled with improprieties and fraud.”
Republican Secretary of State of Georgia Brad Raffensperger has also said even if there is evidence of illegal voting in his state, it’s unlikely to change the outcome, though his state is moving forward with a risk-limiting audit that will involve hand counting every one of the nearly 5 million ballots cast in the presidential race.
“Was there illegal voting? I am sure there was. And my office is investigating all of it. Does it rise to the numbers or margin necessary to change the outcome to where President Trump is given Georgia’s electoral votes? That is unlikely,” Raffensperger said in a statement Monday.
In interviews with ABC News, three current and former Trump advisers said privately that the strategy, if there is one, appears aimed more at influencing public opinion. None would agree to be identified for fear of running afoul of the president, but all of them told ABC News they found the legal approach misguided and disorganized, and found it notable that neither the campaign’s general counsel nor veterans of the president’s Washington legal team — other than Giuliani — have participated in the bulk of the cases.
The campaign appeared to be headed for a serious dispute that could reach the U.S. Supreme Court over a case in Pennsylvania that argued ballots arriving by mail should not be counted if they arrived after Election Day. Republicans argued that a move to grant mail-in voters a three-day grace period for their ballots to arrive would need to come from the state legislature — as prescribed in the Constitution.
But the Pennsylvania Department of State announced Tuesday evening that “approximately 10,000 mail ballots” were received the extension, rendering them moot in the presidential contest given Biden’s current 45,000 vote advantage over Trump.
The campaign’s legal strategy is now largely focused on smaller skirmishes over ballot-counting observers — but they have not so far presented enough evidence that would overturn results in a state.
Judges have tossed out suits in Michigan, Georgia, Nevada, Arizona and Pennsylvania already, saying the filings have little to no evidence backing up their claims.
Even Republicans such as Sen. Roy Blunt have advised Trump to bring forward the concrete evidence now.
“It’s time for the president’s lawyers to present the facts and it’s time for those facts to speak for themselves,” GOP Sen. Blunt said on ABC’s “This Week.”
Former New Jersey Gov. Chris Christie, an ABC News Contributor also said Sunday that he’s been friends with Trump for years “but friendship doesn’t mean that you’re blind.”
“If they don’t come forward with the proof, then it’s time to move on,” Christie said.
ABC News Kendall Karson, Quinn Scanlan, Meg Cunningham, Katherine Faulders, Matthew Mosk and John Santucci contributed to this report.