We are entering uncharted territory in the U.S. Presidential election.  Moscow Mitch is technically correct that the President has the right to avail himself of all legal remedies related to challenging the election results.  But that’s not saying much.  Technically, I have the right to file an election contest in my state challenging the results of several issues that were on the ballot last Tuesday.   But I have no valid legal claims (or at least no evidence supporting any of those claim), and I would be facing sanctions for filing a frivolous case if I tried.  Apparently, the president of the United States is exempt from the rules requiring a good faith basis for filing a case.

The closest that we have been to this type of obstruction was 2000 in Florida.  Of course, in 2000, the election came down to one state, and that state was close enough to trigger an automatic recount.  And where things went off the rails was that the parties could not agree on the proper way to conduct that recount.  As a result, it is debatable whether there ever was a proper recount in Florida.

At least until Trump surrenders, there are two different lines by which things will progress.  The first involves the Presidential Transition Act.  Under the provisions of that act, there is a transition process which includes office space, the ability to employ staff, and access to government materials for the president-elect and vice-president elect.  The key part of the act for the current situation is the triggering language which relies upon the determination of the Administrator of the General Services Administration.  Under that language, those rights trigger upon the determination of the Administrator of the “apparent successful candidate” in the election.  The big problem with the act is that it does not define how the Administrator determines who is the “apparent successful candidate.”  And, in the past, this provision has not been an issue.  In the first fourteen elections held under the Act, the identity of the apparent successful candidate has been clear within forty-eight hours of the election in thirteen elections.   The only exception, as noted above, was 2000 in which it was clear that there was no apparent winner until Florida could complete its recount.  If, as appears to be the case, President Trump has made clear that the Administrator of the GSA should not recognize apparent President-elect Biden as the apparent President-elect, then this dispute may require a petition for writ of mandamus.  (A writ of mandamus compels an official to comply with a ministerial duty.)  The big issue in such a case would be the proper standard for the exercise of the duty and whether that standard is clear enough to give rise to a ministerial duty in this case.  Of course, the risk is that a court might decline to issue the writ because the law lacks any precise standard.   The Biden Transition Team will have to balance off the risk of a bad result in a case against the reality that President Trump and the Administrator of the GSA seem intent on ignoring both the language and the spirit of the Presidential Transition Act. Continue Reading...