While President Donald Trump wants the USA Supreme Court to weigh in on a presidential race that is still too near to call, it might not be the last arbiter in this election, legitimate experts said.
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They said it used to be dubious that courts would entertain a tender by Trump to stop the counting of ballots that were received before or on Election Day, or that any dispute a court might deal with would change the trajectory of the race in closely fought states such as Michigan and Pennsylvania.
With ballots still being counted in many states in the early hours of Wednesday morning, Trump made an appearance at the White House and falsely declared victory against Democratic challenger Joe Biden.
Trump railed against voting by mail all over the election crusade, saying without providing evidence that it led to fraud, which is infrequent in US elections. Sticking to that theme, Trump said: “It is a major fraud on our nation. We would like the law for use in a proper manner. So we’ll be going to the USA Supreme Court. We would like all voting to stop.”
Trump did not supply any evidence to back up his claim of fraud or detail what litigation he would pursue at the Supreme Court. Later in the day, his crusade filed to intervene in a case already pending at the Supreme Court seeking to block late arriving mail-in ballots in Pennsylvania.
The Trump crusade and other Republicans have also filed quite a lot of complaints in other states, including an attempt to stop votes being counted in Michigan.
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As of Wednesday evening, the election still hung in the balance. A handful of closely contested states could make a decision the outcome in the coming hours or days, as a lot of mail-in ballots cast amid the coronavirus pandemic appears to have drawn out the process.
On the other hand, legitimate experts said that while there could be objections to specific ballots or voting and counting procedures, it used to be unclear whether such disputes would decide the last outcome.
Ned Foley, an election law expert at Ohio State University, said the current election does not have the ingredients that would create a situation like in the 2000 presidential race, when the Supreme Court ended a recount in George W Bush’s favour against Democrat Al Gore.
“It’s extremely early on but nowadays it doesn’t seem obvious how this would end up where the USA Supreme Court would be decisive,” Foley said.
Both Republicans and Democrats have amassed armies of lawyers able to go to the mat in a near race. Biden’s team includes Marc Elias, a top election attorney at the firm Perkins Coie, and former Solicitors General Donald Verrilli and Walter Dellinger. Trump’s lawyers include Matt Morgan, the president’s crusade general counsel, Supreme Court litigator William Consovoy, and Justin Clark, senior counsel to the crusade.
Trump attorney Jenna Ellis on Wednesday defended Trump’s tender to challenge the vote count and evaluate his legitimate options. “Whether we need to go through these legitimate challenges, that’s not unprecedented,” Ellis told Fox Commerce Network in an interview. “He wants to be sure that the election isn’t stolen.”
The case closest to being resolved by the Supreme Court is the Pennsylvania dispute in which Republicans are challenging a September ruling by Pennsylvania’s top court allowing mail-in ballots that were postmarked by Election Day and received up to three days later to be counted.
The Supreme Court in the past declined to fast-track an appeal by Republicans. But three conservative justices left open the potential for taking up the case again after Election Day.
Although the court were to take up the case and rule for Republicans, it would possibly not decide the last vote in Pennsylvania, as the case only concerns mail-in ballots received after November 3.
David Boies, who represented Gore in 2000, said it is unlikely that the Trump crusade would succeed in a conceivable third effort to block the extended deadline.
“I think that it’s more posturing and hope than anything else,” Boies said, adding that the Pennsylvania outcome could even grow to be irrelevant, depending on the result in Michigan and Wisconsin.
In a separate Pennsylvania case filed in federal court in Philadelphia, Republicans have accused officials in suburban Bernard Law Montgomery County of illicitly counting mail-in ballots early and also giving voters who submitted faulty ballots a chance to re-vote.
Whether Biden secures 270 electoral votes without needing Pennsylvania, the likelihood of a legitimate fight in that state diminishes in the end, legitimate experts said.
And any challenge would also want to make its way through the standard court hierarchy.
“I think the Court would summarily turn absent any effort by the President or his crusade to short-circuit the abnormal legitimate process,” said Steve Vladeck, a professor at the University of Texas at Austin School of Law.
“Even Bush v. Gore went through the Florida state courts first.” he added.