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,” tweeted Stephen Vladeck a constitutional law professor at the University of Texas. “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.”
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, Jen 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.
Exaggeration
“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.