WASHINGTON – After falsely claiming he had already won the election while several key states were still counting votes, President Donald Trump on Wednesday suggested he would seek the help of the Supreme Court to secure a second term and launched a legal offensive in three pivotal states. But election law experts said it was unclear whether an election-deciding case would reach the justices.
Speaking in the East Room of the White House after 2 a.m. eastern time, Trump lamented that he was “winning everything” in early vote tallies in key swing states before Democratic nominee Joe Biden started gaining on him as more ballots were counted.
“This is a major fraud on our nation,” the president said, apparently referring to the ongoing counting of votes that were cast before polls closed. “We want the law to be used in a proper manner, so we’ll be going to the U.S. Supreme Court. We want all voting to stop.”
Later Wednesday, the Trump campaign filed lawsuits in three still-undecided states that could determine the next president, challenging ballot-handling in Georgia and seeking to stop vote-counting in Pennsylvania and Michigan.
After Senate Republicans confirmed Justice Amy Coney Barrett to the Supreme Court Oct. 26 – an extraordinary third appointment in Trump’s first term that ensured a conservative majority on the high court for years to come – Democrats have worried the court’s newest member could tip the balance in the president’s favor should an election-related question come before the court.
But Justin Levitt, an election law expert at Loyola Law School, said the high court is unlikely to take up a case unless it could affect a decisive number of votes in a state that would crown the winner of the Electoral College.
“I think the odds that anything relevant to this election makes it to the Supreme Court are still infinitesimal,” Levitt said, referring to separate lawsuits in Pennsylvania and Minnesota that affect relatively few ballots.
“Right now, there’s not actually a legal issue that’s going to do anything significant to the (vote) count,” Levitt said. “There are some juicy legal issues buried in there, but also plenty of reasons why the Justices would not want to decide them in this context even if they got anywhere near the Court.”
After the Associated Press called Wisconsin and Michigan for Joe Biden on Wednesday, the former vice president appeared on the verge of winning the 270 electoral votes needed for victory. Nevada, Pennsylvania, North Carolina and Georgia remained too close to call, but Biden would need to prevail in just one of those states to reach the White House.
“I’m not here to declare that we’ve won,” Biden said Wednesday in Wilmington, Delaware, “but I am here to report that when the count is finished, we believe we will be the winners.”
In a call with reporters Wednesday morning, Biden campaign adviser Bob Bauer dismissed the Trump campaign’s legal challenges as “just basically wasting time and giving Donald Trump an opportunity to express yet another set of grievances.”
“If they want to push something up to the Supreme Court, one way or the other, presumably they can do that. We’re not worried about it,” Bauer said. “(Trump’s) mission is to attack the democratic process, and our mission is to successfully defend it.”
Lisa Marshall Manheim, an associate professor of law at the University of Washington, said voters should be patient as votes are counted and litigation plays out.
“This isn’t the first disputed election and it’s not going to be the last,” Manheim said. “We have processes in place for legal challenges and those processes are continuing to play out. It’s very common for there not to be a projected winner immediately after an election and official counts always take a significant amount of time, so for now we just need to wait.”
Mark Braden, a lawyer specializing in elections who served for a decade as chief counsel for the Republican National Committee, said Trump had already signaled he would look to the Supreme Court in a tight race. But Braden, who has worked to identify cases of voter fraud in close elections, said the president’s allegations of fraud seem unfounded.
“I’ve seen no indication of fraud of a massive scale anywhere that would affect anything related the presidential election, so I don’t really know where that statement is coming from,” Braden said.
After the AP called Wisconsin for Biden, the Trump campaign said it would seek a recount. With 99% of votes counted, Biden held a roughly 20,000-vote lead, but Braden, who worked for GOP gubernatorial candidate Dino Rossi on Washington’s historically close 2004 race, said requesting a recount is a straightforward decision in these circumstances.
“It appears to have been a very quiet and well-conducted Election Day across the country, especially in light of the unusual circumstances and the fever pitch of the campaign,” Braden said. “But it’s close, so every place that there could be a recount under the state’s law, I can’t imagine the Trump campaign resisting the temptation to ask for a recount, even if the circumstances make changing the result less than improbable.”
The issue that appears most likely to come before the Supreme Court involves a change made by Pennsylvania’s Supreme Court in September to count mail-in ballots received until Nov. 6 as long as they were postmarked by Election Day. Washington and several other states have similar rules, which were made especially relevant this year amid United States Postal Service delays, but the Trump campaign sued to overturn the change.
The Trump campaign’s plea to ignore those ballots was appealed to the U.S. Supreme Court, which, with a 4-4 tie on Oct. 21, let the state court’s decision stand. A week later, the court denied a GOP appeal on the same case, but Justice Samuel Alito wrote an opinion indicating the court could consider the same question after the election.
The newly confirmed Justice Barrett, who did not have time to review the court filings, didn’t take part in the decision, but Democrats fear that if the issue comes before the high court again, she would vote to overturn the Pennsylvania measure and throw out the potentially decisive mail-in ballots received after Election Day, which trends suggest are likely skewed heavily toward Biden.
“Election law is largely governed by states, in terms of the process of going to the polls,” said University of Idaho law professor Shaakirrah Sanders. The Supreme Court tends to defer to state courts on questions of state election law, she said, “Unless those state election law questions raise issues of federal law, whether it’s a federal statute or the Constitution.”
The Republicans’ argument is that the Constitution’s elections clause gives only state legislators, not a state supreme court, the power to change election laws.
“The elections clause would appear to provide to the state legislature, exclusively, the authority to set the time, manner and place for elections,” Braden said. “There’s a reasonable argument to be made that’s not what happened in Pennsylvania and they changed the rules too late.”
Sanders said the relative newness of Trump’s three Supreme Court appointees, coupled with Chief Justice John Roberts’ reservedness, could make the court less likely to take up a case that could decide the election. If the court chooses not to hear a case, the lower court ruling stands.
Braden also said the court is unlikely to take up the issue unless the race comes down to Pennsylvania. As of Wednesday night, Trump needed to sweep Georgia, Nevada, North Carolina and Pennsylvania to win the presidency.
“Given where we are in the process and given the likelihood that Pennsylvania is not going to make a difference, I would be quite surprised if the Supreme Court had any great desire to hear this case again,” he said. “My guess is that all nine justices have lit candles and are praying, saying, ‘Don’t send us any more election cases this year.’”
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