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The Supreme Court in Washington. Photo: AP

PoliticoWhy the Supreme Court probably won’t help Trump’s re-election fate

  • The president’s vow to take his unsubstantiated election claims to the highest court was met with confusion

This story is published in a content partnership with POLITICO. It was originally reported by Josh Gerstein on on November 4, 2020.

US President Donald Trump’s drive to have the Supreme Court ensure his re-election faces serious obstacles – both legal and practical – that could wind up leaving him empty-handed.

“We’ll be going to the US Supreme Court,” Trump declared early Wednesday during a speech to supporters at the White House. “We want all voting to stop. We don’t want them to find any ballots at 4 o’clock in the morning and add them to the list, OK? … We will win this and as far as I’m concerned we already have won it.”

Legal experts from both parties said they were somewhat baffled by Trump’s remarks about asking the high court to stop voting. Even interpreting his statement to mean halting vote counting was confusing because under any scenario, vote counting in some states was sure to continue for several days after the election.

Asked to parse Trump’s comment, long-time Republican Party election lawyer Jan Baran said: “I have no idea – and I don’t think he does either.”

As of Wednesday afternoon, the president still had a path to victory, but it had significantly narrowed after Democratic presidential nominee Joe Biden clinched Arizona and increased his gains in Michigan and Wisconsin.

Trump campaign officials had little to say Wednesday about the Supreme Court, although they did announce plans to seek a recount in Wisconsin, where Trump was running about 20,000 votes behind Biden.

Baran suggested that was a long shot, judging by history. He said he was unaware of any statewide race where a recount moved close to that many votes.

“There are legal mechanisms, but you need some evidence and some facts, as well as legal arguments,” Baran said. “Twenty thousand votes? Who knows what you may find under the rug or behind the couch that does pop up. It’s possible.”

The only case about vote-counting deadlines that could be teed up at the high court right now is from Pennsylvania, where Democrats and Republicans have fought over an extension to accept mail-in ballots postmarked on or before Election Day for three days past the election.

Indeed, on Wednesday evening, Trump’s campaign formally asked to intervene in petitions on that issue that are already pending at the Supreme Court.

Donald Trump’s post-election marching orders: dispute ballots, contest results

“Given last night’s results, the vote in Pennsylvania may well determine the next President of the United States,” the campaign’s motion said. “And this Court, not the Pennsylvania Supreme Court, should have the final say on the relevant and dispositive legal questions.”

The court gave the existing parties on both sides until 5pm Thursday to respond. The campaign’s filing appeared to be a precursor to Trump‘s asking the high court for relief in Pennsylvania, such as a halt to further vote counting, but so far no request to the justices to do that has come.


Trump and Biden’s statements on 2020 US presidential election

Trump and Biden’s statements on 2020 US presidential election

Yet even if Trump somehow were able to succeed in stopping the state from finishing its vote count, the state’s 20 electoral votes would not be enough to put him over the top in the Electoral College.

So the president would likely have to broaden the legal fight to at least one other state to hold onto his job. It’s not immediately clear which state would be a fruitful target for him.

Most of the other states that have seen recent legal jockeying at the high court already appear to be in Trump’s column (North Carolina, for instance). While Trump might benefit from a recount in Wisconsin, Democrats lost a court battle over late-arriving ballots there, so it’s unclear what new litigation could be filed to cut off the ballot tabulation, or how it would reach the Supreme Court.

Another, perhaps insurmountable, legal challenge for Trump is that even if the Supreme Court ultimately rules that a change like Pennsylvania’s three-day was unconstitutional, there are signs a majority of the court could order those ballots to be counted anyway.

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“I wouldn’t want to speculate on how the Court would rule, but the argument that voters relied on the rules in place on and before Election Day – and should therefore have their votes counted – is very strong,” said Dan Tokaji, dean of the University of Wisconsin Law School.

The best indication of the uphill battle Trump faces may be the Supreme Court’s approach early last month to a legal fight over a federal court order that blocked South Carolina’s requirement that a witness sign postal votes. Republicans prevailed in that battle, as the high court reinstated the usual rule.


US President Trump’s lawyer, son Eric accuse Democrats of ballot fraud in Pennsylvania, Wisconsin

US President Trump’s lawyer, son Eric accuse Democrats of ballot fraud in Pennsylvania, Wisconsin

However, the Supreme Court’s decision came with a seemingly minor caveat that voters who’d already sent in their postal votes without a witness signature wouldn’t have the absence of that held against them. The justices even added – seemingly out of thin air – a two-day grace period from their decision to allow those unwitnessed ballots to reach election officials.

In the October 5 order, three Republican Party-appointed justices noted their objection to that carve-out: Clarence Thomas, Samuel Alito and Neil Gorsuch. It appears that the five other justices – the three liberals, Chief Justice John Roberts and Justice Brett Kavanaugh – formed a majority to create a safe harbour for voters who skipped the witness requirement based on a good-faith belief that the rule had been waived for this election.

The Supreme Court didn’t explain its rationale for the grace period in the South Carolina case or for not making its ruling enforcing the witness requirement retroactive, but lawyers say the most likely explanation is the notion of “reliance interests” – the idea that voters shouldn’t be penalised for doing what they were told was permissible.

Trump vs Biden: what happens if the 2020 US election is contested?

If the court extends that principle to the Pennsylvania case, that would mean late-arriving ballots should be recognised because voters might have mailed them on Election Day thinking they’d be counted if received in the following days.

“The legal posture of the case … cuts against the Supreme Court ruling these ballots invalid,” said New York University law professor Richard Pildes. “That’s because the court had two opportunities to stop voters, but did not, from believing their mailed-in ballots were valid as long as they arrived on or before November 6.”

Newly minted Justice Amy Coney Barrett wasn’t on the court yet when the justices ruled on the South Carolina dispute last month. But if the pattern established in that case holds, it wouldn’t matter whether Barrett aligns herself with the court’s most conservative bloc or throws in with the chief justice and Kavanaugh. Either way, Trump may not have the majority he’d need to throw out late-arriving votes.

Of course, one big “if” in this scenario is the presumption that the court would follow the rule it set in the South Carolina case. Roberts, Kavanaugh or, less likely, one of the liberal justices, might waver or find some fine distinction, particularly if the outcome of the election seems to ride on the high court’s ruling.

Another big “if” is whether ruling late ballots in or out could make a difference for Trump in the Keystone State. Some legal experts doubt it, especially given all the attention in recent weeks to postal delays and the need for ballots to arrive on time.

“I would expect the number of these ballots to be small, much less than some might think,” Pildes said. “Because Pennsylvania has been in the crosshairs of both campaigns from the start, voters were not just highly mobilised, but voting early, in person or by returning those ballots.”

Anita Kumar contributed to this report

Read Politico’s story.

This article appeared in the South China Morning Post print edition as: Confusion reigns over court comments