Trump’s Road to Supreme Court Is Neither Fast Nor Certain
(Bloomberg) -- President Donald Trump said he will go to the U.S. Supreme Court because he wants “all voting to stop,” as he tries to hold on to early leads in key battleground states.
He won’t be able to go there immediately and it’s not clear he has a legal argument that could affect the outcome of the election.
Cases typically work their way to the nation’s highest court after a ruling by a local judge and then other appeals courts. In 2000, it took more than a month before the Supreme Court issued the landmark Bush v. Gore ruling that ultimately decided that year’s election.
The Supreme Court has only limited power to sway the outcome of the election. Trump would need to raise specific legal objections -- under either the Constitution or a federal statute -- that could swing a pivotal state.
“The election could end up in #SCOTUS only if a tipping-point state is close enough that a pool of votes subject to a non-frivolous challenge (say, late-arriving absentee ballots in PA) is outcome-determinative,” Stephen Vladeck, a constitutional law professor at the University of Texas, tweeted. “Just because we don’t have a result now doesn’t mean that’s likely.”
As counting continues in states including Pennsylvania, Wisconsin and Michigan, Trump said in an early morning speech -- in which he also falsely claimed victory -- that the tabulation delays were an “an embarrassment to our country.”
“This is a major fraud on our nation,” Trump said. “We want the law to be used in a proper manner.”
However Joe Biden’s campaign said it had legal teams ready to counter any lawsuits.
“If the president makes good on his threat to go to court to try to prevent the proper tabulation of votes, we have legal teams standing by ready to deploy to resist that effort, and they will prevail,” Biden’s campaign manager, Jennifer O’Malley Dillon, said in a statement.
Trump didn’t lay out any grounds for a possible challenge, and it’s not clear what irregularities his lawyers would target, said Nicholas Whyte, who runs an election blog for APCO Worldwide, a consulting firm in Brussels.
“Of course before it went to the Supreme Court, it would have to go to local courts anyway so this talk of taking it straight to the Supreme Court is an exaggeration,” Whyte said.
One longtime Republican lawyer said Trump will have difficulty stopping votes that came in on or before Election Day from being counted.
“I don’t know how to a large extent he’d be able to justify a law to just bypass the state procedures and disenfranchise people who’ve legally cast their ballots,” Ben Ginsberg, who advised George W. Bush in 2000, said on CNN.
Other lawsuits on various issues, however, are already in the works that could wind their way through the appellate process quickly.
Republicans in Pennsylvania on Tuesday filed a lawsuit in one county in the Philadelphia suburbs, alleging that officials illegally allowed mail-in ballots to be counted before Election Day. A hearing is scheduled for Wednesday at 9 a.m.
And Republicans are already asking the Supreme Court to block mail-in ballots from being counted in Pennsylvania if they arrive after Tuesday. The Pennsylvania Supreme Court previously ordered a three-day extension for ballots to arrive, saying it was required by the state constitution, and the U.S. Supreme Court temporarily left the ruling intact on a 4-4 vote.
The justices may revisit the question, and ballots received after Tuesday are set to be kept separate, pending further litigation.
“Four conservative justices have already declared that they are willing to review the case after the election. They left open the door,” said Ilaria Di Gioia, associate director of the Centre for American Legal Studies at Birmingham City University in the U.K. “The issue is whether it should be up to the state legislature or up to the Supreme Court to decide how to count votes.”
Republicans are banking on newly confirmed Justice Amy Coney Barrett to make the difference. Trump appointed three judges to the Supreme Court during his first term, including Coney Barrett who was confirmed just a week before the election, to cement a conservative majority on the bench.
But Republicans also would need to persuade the court’s other conservatives to invalidate ballots from voters who might have been relying on the extension, and that’s no guarantee, says Russell Miller, a professor at Washington and Lee School of Law in Virginia.
“If you happen to have a lawsuit, it definitely doesn’t hurt if you get to pick the judges,” said Miller, who is on leave at the Max Planck Law Network in Frankfurt. But Chief Justice John Roberts, a Republican appointee, has recently opposed his conservative peers.
“Sometimes judges are willing to depart from the stereotype in an effort to protect the integrity of the institution,” he said.
The only time the Supreme Court has resolved a disputed presidential election was 2000, when the court sealed the election for Republican George W. Bush by stopping Florida ballot recounts that could have swung that state for Democrat Al Gore. The high court said the different standards for counting ballots around the state violated the Constitution’s equal protection clause. Bush won the state by 537 votes.
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