“He’s gone zero for seven in the lawsuits and that trend is going to continue,” Katyal told MSNBC’s Brian Williams. “It’s not going to get better for him.”
Katyal, who served under the Obama administration and has argued cases in the Supreme Court, said that the best chance Trump has had is when Pennsylvania Republicans asked the U.S. Supreme Court to require election officials to segregate the ballots that come in after Election Day and not count them until a decision has been made by the court.
However, Pennsylvania officials were already segregating the ballots since Tuesday, thus giving the impression that the request was predominantly for show.
Supreme Court Associate Justice Samuel Alito granted the request to segregate the ballots but didn’t direct election officials to stop counting them. In a Supreme Court filing on Friday, the Pennsylvania Democratic Party accused the GOP of “manufacturing evidence” that counties weren’t complying with the rules after giving them a one-day turnaround time to respond.
“You had people like [former White House Press Secretary] Sean Spicer and others get on Twitter and say, ‘Oh this is some big victory for the president,” Katyal said. “It’s a victory in the same ways if Donald Trump managed to say the sky is blue […] the Supreme Court would agree, ‘Yes, the sky is blue.’ That doesn’t help him legally.”
“The reason why it doesn’t help him is two-fold: one is, these ballots haven’t been counted yet, and yet Biden is well in the lead,” he continued.
“The second problem is, legally, it’s a really dubious theory. Justice Alito didn’t get into it but, basically, no Supreme Court has ever accepted this, no Supreme Court majority in over 200 years of our history.”
The Trump campaign has filed several suits in different states as the election count gets closer. The Trump campaign filed a lawsuit along with the Georgia Republican Party on Wednesday, alleging ballots were being processed after the state’s deadline of 7 p.m. on Election Day. A Nevada district court judge denied an emergency request Friday after Republicans filed a lawsuit alleging “lax procedures for authenticating mail-in ballots over 3,000 instances of ineligible individuals casting ballots.” Also on Friday, a judge in Michigan rejected a lawsuit claiming that rules were broken during the ballot-counting process in Detroit, citing lack of evidence.
When asked about Trump’s attempt to stop the count of legally cast votes, Katyal said it wasn’t just a bad look and a bad strategy, but Trump’s attempt is going against American democracy.
“It’s fundamentally un-American,” said Katyal.
“He’s literally trying to disenfranchise Americans and that is, of course, our greatest check that our founders gave us against an executive who heirs. That’s the power to vote him out of office,” he continued. “And that looks like, if the counts are right, what the American people did on Tuesday.”
Biden currently leads Trump in states worth more than 300 electoral votes together. The former vice president leads in Pennsylvania by 0.5 percentage points, with remaining mail ballots likely to favor Democrats. Biden managed to overtake Trump’s lead in Georgia on Friday morning, now ahead by just over 7,000 votes. Georgia Secretary of State Brad Raffensperger confirmed that the state will go to a recount.
“If I’m Joe Biden tonight, I’m feeling really good right now about where I am in the election count, but I’m also feeling really good about the law,” Katyal said.
