Will Trump Take the Election to the Supreme Court?

Trump Lays the Groundwork for Contesting Battleground States as he Slips Behind Biden

As his hope of winning re-election at the polls fades, Donald Trump has been engaged in a flurry of legal activity to try to improve his chances and cast doubt on the election results, laying ground for contesting the outcome in battleground states as he slipped behind Democrat Joe Biden in the hunt for the 270 Electoral College votes needed to win the White House.
 
TRUMP CLAIMS VICTORY AS LAWSUITS BREW
 
Breaking 36-hour silence during election count, Trump incorrectly declared victory based on incomplete vote totals across the rust belt and in Georgia in wee hours on Wednesday morning. “This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election,” the president said, as states continued counting hundreds of thousands of legally cast votes — both mail-in and Election Day ballots.”
 
Later the same day, the Trump campaign filed lawsuits to contest counting in Pennsylvania, Michigan and Georgia. The new filings demand better access for campaign observers to locations where ballots are being processed and counted, and absentee ballot concerns, the campaign said.  In Michigan and Pennsylvania, the campaign demanded access to voting sites to count each ballot; where both campaigns have poll watchers on site. Additionally, on Wednesday afternoon, the Trump campaign asked the Supreme Court to let it join an appeal by the Pennsylvania GOP where it is seeking to invalidate mail-in votes in Pennsylvania that are postmarked by Election Day but arrive by the end of Friday. Fox News also reported that the Trump campaign will also sue in Nevada over what it claims is voter fraud committed by "tens of thousands" people who do not live in the state. 
 
The President then made a dramatic interjection Thursday morning, while ballots continued to be tallied in five swing states as Joe Biden pulled ahead of him in the race for the White House. He followed that up with a second angry tweet, writing: "ANY VOTE THAT CAME IN AFTER ELECTION DAY WILL NOT BE COUNTED!"  Twitter quickly flagged the missive as misleading, with different US states having different rules on accepting mail-in ballots that have a post mark for election day. 
 
Trumps actions reveal an emerging legal strategy that the president had signalled for weeks. 
He has been waging a months-long campaign against mail-in voting in November by tweeting and speaking critically about the practice, which has been encouraged by more states to keep voters safe amid the coronavirus pandemic. He has also on multiple occasions declined to commit to a peaceful transfer of power if he loses the election. "We're going to have to see what happens," Trump said during the campaign.  "You know that I've been complaining very strongly about the ballots, and the ballots are a disaster."  Experts say there is no evidence that mail-in ballots are prone to fraud.
 
Despite Trump’s warnings, states were contending with an avalanche of mail ballots driven by fears of voting in person during a pandemic. At least 103 million people voted early, either by mail or in-person, representing 74% of the total votes cast in the 2016 presidential election. Mail ballots normally take more time to verify and count. This year, because of the large numbers of mail ballots and a close race, results took longer.
 
TAKING THE ELECTIONS TO COURT



Donald Trump vowed to take the 2020 US presidential election to the Supreme Court even as votes are still being counted and the overall result remains unclear.  “We want the law to be used in a proper manner, so we’ll be going to the US supreme court. We want all voting to stop. We don’t want them to find any ballots at four o’clock in the morning and add them to the list. OK? It’s a very sad moment,” Trump said. “We will win this and as far as I’m concerned we already have won it,” he added.
 
Trump’s comments evoked a reprise of the 2000 presidential election when a recount dispute in Florida’s vote between George W Bush and Al Gore was settled on 12 December that year. But there are important differences from 2000 and they already were on display. In 2000, Republican-controlled Florida was the critical state and Bush clung to a small lead. Democrat Al Gore asked for a recount and the Supreme Court stopped it.
 
Following Trump’s threat to challenge the election result, the Biden campaign said they were prepared to fight any attempt to prevent votes from being fully counted. “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,” Jen O’Malley Dillon, Biden’s campaign manager, said in a statement.
 
The president appears to be pinning hopes that a conservative majority on the supreme court, including his recent appointment Amy Coney Barrett, will rule in his favour. The role of the attorney general, William Barr, who has been loyal to Trump, could also be critical. 
 
But legal experts have cast doubt on whether Trump could successfully prevent votes from being counted after election day, as there are legitimate arguments for the Supreme Court to decide that the November 6 deadline stays in place as that is what voters relied upon in choosing to vote by mail and as well as it being a standard feature of presidential elections. Moreover, the Supreme Court could decide to leave state issues to state courts. It’s also important to note that the Trump campaign cannot take their case straight to the Supreme Court – a case must, in most cases, must be heard in several state or federal courts as it makes it up the winding staircase that is the US judicial system.
 
However, there are strong arguments over the state court's authority to overrule the state Legislature's Election Day deadline. Three justices – Samuel Alito, Clarence Thomas and Neil Gorsuch – wrote last week that the high court's action leaving in place the later deadline could be revisited after the election. For now, those ballots are being segregated to allow for court challenges.
 
Either way, such a case only would demand the attention of the nation's highest court should the vote in Pennsylvania have the potential to determine the outcome in the Electoral College and should those late-arriving ballots have the potential to swing the state, the U.S. Supreme Court might well intercede.