Trump faces tough road in getting Supreme Court to intervene
WASHINGTON
(AP) — President Donald Trump has repeatedly said there’s one place he
wants to determine the outcome of the presidential election: the U.S.
Supreme Court. But he may have a difficult time ever getting there.
Over
the last two days, Trump has leaned in to the idea that the high court
should get involved in the election as it did in 2000. Then, the court
effectively settled the contested election for President George W. Bush
in a 5-4 decision that split the court’s liberals and conservatives.
Today,
six members of the court are conservatives, including three nominated
by Trump. But the outcome of this year’s election seemed to be shaping
up very differently from 2000, when Florida’s electoral votes delivered
the presidency to George W. Bush.
Then, Bush led in Florida and
went to court to stop a recount. Trump, for his part, has suggested a
strategy that would focus on multiple states where the winning margins
appear to be slim. But he might have to persuade the Supreme Court to
set aside votes in two or more states to prevent Joe Biden from becoming
president.
Chief Justice John Roberts, for his part, is not
likely to want the election to come down to himself and his colleagues.
Roberts, who was not on the court for Bush v. Gore in 2000 but was a
lawyer for Bush, has often tried to distance the court from the
political branches of government and the politics he thinks could hurt
the court’s reputation.
It’s also not clear what legal issues
might cause the justices to step in. Trump has made repeated,
unsubstantiated claims of election fraud. Lawsuits filed by his campaign
so far have been small-scale efforts unlikely to affect many votes, and
some already have been dismissed.
Still, Trump has focused on the
high court. In the early morning hours following Election Day he said:
“We’ll be going to the U.S. Supreme Court — we want all voting to stop.”
And on Thursday, as Biden inched closer to the 270 Electoral College
votes needed to win the White House, Trump again told Americans, “It’s
going to end up, perhaps, at the highest court in the land, we’ll see.”
On Twitter too he urged, “U.S. Supreme Court should decide!”
There
is currently one election case at the Supreme Court and it involves a
Republican appeal to exclude ballots that arrived after Election Day in
the battleground state of Pennsylvania. But whether or not those ballots
ultimately are counted seems unlikely to affect who gets the state’s
electoral votes.
Biden opened a narrow lead over Trump on Friday, and any additional mail-in votes probably would help Biden, not the president.
Still,
Trump’s campaign is currently trying to intervene in the case, an
appeal of a decision by Pennsylvania’s highest court to allow three
extra days for the receipt and counting of mailed ballots. Because the
case is ongoing, the state’s top election official has said the small
number of ballots arriving in that window have been separated out and
not added to either candidate’s total. Even so, Republicans on Friday
asked for a high court order ensure the ballots are separated.
Beyond
the Pennsylvania case, if Trump wanted to use a lawsuit to challenge
the election outcome in a state, he’d need to begin by bringing a case
in a lower court.
So far, Trump’s campaign and Republicans have
mounted legal challenges in several states, but most are small-scale
lawsuits that do not appear to affect many votes. On Thursday, the Trump
campaign won an appellate ruling to get party and campaign observers
closer to election workers who are processing mail-in ballots in
Philadelphia. But Judges in Georgia and Michigan quickly dismissed two
other campaign lawsuits Thursday.
Trump and his campaign have promised even more legal action, making unsubstantiated allegations of election fraud.
Biden’s
campaign, meanwhile, has called the existing lawsuits meritless, more
political strategy than legal. “I want to emphasize that for their
purposes these lawsuits don’t have to have merit. That’s not the
purpose. … It is to create an opportunity for them to message falsely
about what’s taking place in the electoral process,” lawyer Bob Bauer
said Thursday, accusing the Trump campaign of “continually alleging
irregularities, failures of the system and fraud without any basis.”
On
the other side, Trump’s campaign manager Bill Stepien, in a call with
reporters Thursday morning, said that “every night the president goes to
bed with a lead” and every night new votes “are mysteriously found in a
sack.”
It’s common in presidential elections to have vote
counting continue after Election Day, however. And while most states
make Election Day the deadline to receive mailed-in ballots, 22 states —
10 of which backed Trump in the 2016 election — have a post-Election
Day deadline.