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Can Donald Trump sue his way to a second term in the White House?

  • Published at 07:13 pm November 5th, 2020
Donald Trump
US President Donald Trump speaks about early results from the 2020 US presidential election in the East Room of the White House, in Washington on November 4, 2020 Reuters

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

While President Donald Trump wants the US Supreme Court to weigh in on a presidential race that is still too close to call, it may not be the final arbiter in this election, legal experts said.

According to them, it was doubtful that courts would entertain Trump’s bid to stop the counting of ballots that were received before or on election day, or that any dispute a court might handle 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 during the election campaign, saying without providing evidence that it led to fraud, which is rare in US elections.

Sticking to that, Trump said: “This is a major fraud on our nation. 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.”

The US president did not provide 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 campaign filed to intervene in a case already pending at the Supreme Court seeking to block late-arriving mail-in ballots in Pennsylvania.

The Trump campaign and other Republicans have also filed various complaints in other states, including an attempt to stop votes being counted in Michigan.

Can Trump do it?

Peter Beaumont, senior reporter of The Guardian's Global Development desk, has given a detailed explanation on the matter. 

According to Beaumont, Trump may, with this in mind, have filled the Supreme Court with conservative appointees, but things aren’t so straightforward. 

The Supreme Court is the final court of appeal in the US and has discretion over which cases it should hear, largely relating to challenges to cases heard in lower courts on points of federal law and the constitution.

Also Read- Trump campaign mobilizes legal teams for election challenges

So, a lot of action will happen initially at state-level courts – the election has prompted a spate of new cases in the hotly-contested battleground states of Pennsylvania, Michigan and Georgia.

What has made the current election landscape more of a minefield is the fact the coronavirus pandemic has led states to look for ways to make voting safer, including expanding absentee ballots, which has opened states up to challenges in the courts over issues such as proposed extensions to the period in which late mail-in votes are counted.

It is important to remember that election challenges in state courts are nothing new, sometimes without merit, and often have little impact in the end. 

However, one important exception to that was the 2000 election where a series of legal challenges over faulty voting procedures in Florida handed the election to George W Bush.

How could this work?

The most common scenario is for lawyers to challenge the way an election was conducted locally and seek to have votes discarded. In the key state of Pennsylvania, conservative groups have already ramped up cases to ensure late mail-in ballots are not counted, with two cases heard on Wednesday.

However, Pennsylvania requires an unusually high burden of proof for challenging elections, including written affidavits detailing wrongdoing.

Pennsylvania is already on the Supreme Court’s radar in this respect. Republicans in the state have already appealed against a Pennsylvania Supreme Court decision ordering state election officials to accept mail-in ballots that arrive up to three days after the election, relying on an interpretation of the state’s own constitution.

The US supreme court deferred hearing this case before the election but in a case that it did rule on, the court sided with a Republican challenge saying the state could not count late mail in ballots in Wisconsin. 

The Supreme Court chief justice John Roberts made clear, however, that “different bodies of law and different precedents” meant the court did not consider the situation in Pennsylvania and Wisconsin as the same.

What experts said?

However, legal experts said that while there could be objections to particular ballots or voting and counting procedures, it was unclear if such disputes would determine the final 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 favor against Democrat Al Gore.

“It’s extremely early on but at the moment it doesn’t seem apparent how this would end up where the US Supreme Court would be decisive,” Foley said.

Both Republicans and Democrats have amassed armies of lawyers ready to go to the mat in a close 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. 

Also Read- US Supreme Court may not have final say in presidential election, despite Trump threat

Trump’s lawyers include Matt Morgan, the president’s campaign general counsel, Supreme Court litigator William Consovoy, and Justin Clark, senior counsel to the campaign.

Trump attorney Jenna Ellis on Wednesday defended Trump’s bid to challenge the vote count and evaluate his legal options. 

“If we have to go through these legal challenges, that’s not unprecedented,” Ellis told Fox Business Network in an interview. “He wants to make sure that the election is not 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 previously declined to fast-track an appeal by Republicans. But three conservative justices left open the possibility of taking up the case again after election day.

Even if the court were to take up the case and rule for Republicans, it may not determine the final 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 campaign would succeed in a possible 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 become 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 Montgomery County of illegally counting mail-in ballots early and also giving voters who submitted defective ballots a chance to re-vote.

If Biden secures 270 electoral votes without needing Pennsylvania, the likelihood of a legal fight in that state diminishes in any case, legal experts said.

And any challenge would also need to make its way through the usual court hierarchy.

“I think the Court would summarily turn away any effort by the President or his campaign to short-circuit the ordinary legal process,” said Steve Vladeck, a professor at the University of Texas at Austin School of Law.

“Even Bush vs Gore went through the Florida state courts first.”

Worst-case scenario

The closer the outcome in the Electoral College, the more messy things become, with the memory of Florida in 2000 looming above everything. 

The closest of results led to 35 messy days of legal challenges and laborious hand recounts, which gave the election to George W Bush after the state was originally called by news organizations for the Democratic challenger, Al Gore.

Bush took 271 of the 538 electoral votes, winning Florida by fewer than 600 votes, after a recount was halted by the Supreme Court, making Bush the first Republican president since 1888 to win despite losing the popular vote.

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