As several key battleground states raced to complete counting ballots, Donald Trump on Wednesday said he would go to the Supreme Court to secure his re-election, setting up the possibility of protracted litigation over the eventual result.
“We’ll be going to the US Supreme Court,” the president said in the early hours of Wednesday morning, claiming victory at a press conference. “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.”
He followed up later with a number of tweets about “ballot dumps”, an apparent reference to newly counted votes that could make Joe Biden, the Democratic challenger, the eventual winner.
Any lawsuits would not go directly to the Supreme Court, however, and there is little legal basis for the idea that the courts would order a general halt on what the president referred to as “all voting”. Polls have already closed and election officials are now tallying the results.
Justin Levitt, an election law professor at Loyola Law school, called Mr Trump’s comments “exceedingly outlandish, and no, there’s no actual legal basis behind any of it”.
“What happens next is the same thing that’s happened for hundreds of years: we count the ballots that have been cast by eligible voters,” he said.
Still, the president’s comments have cast a cloud over the ongoing process, including in states where mail ballots can lawfully arrive after November 3.
In some states that are still counting, like Pennsylvania, Republican lawmakers refused to let the election officials start counting mailed ballots ahead of polling day, leaving a backlog of votes that are expected to lean Democratic.
In certain states it is legal for mail ballots to arrive after polling day if they were posted by November 3, although the law is not settled in Pennsylvania — a state seen as especially critical to Mr Trump’s chance of winning — and could be the subject of further litigation by Republicans.
Legal action would have to begin in the lower state or federal courts before working its way up to the US Supreme Court. There is no precedent for a generalised halt on counting ballots, or even a halt in a specific state at this very early stage.
In Bush vs Gore in 2000, the Supreme Court halted a recount of votes — not an initial count — and did not issue its controversial decision until almost the middle of December, weeks after polling day. There had been litigation in the Florida courts before the US high court took up the case.
Court battles over the 2020 election have raged in the weeks leading up to November 3, and some are still ongoing.
These include two active cases in Pennsylvania relating to processes for allowing voters to fix defective ballots, with local Republicans arguing it is not allowed under state law.
In Wisconsin, the Trump campaign has already begun forecasting the possibility of a recount.
“That is recount territory,” Bill Stepien, the Trump campaign manager, said of the close margins in the state on a Wednesday morning call with reporters. Wisconsin law does not automatically call for a recount in close races, but if the margin of victory is less than 1 per cent, a recount can be requested.
The significance of these and other existing and potential disputes will ultimately rest on how close the eventual vote totals are. Either side will contest each other’s moves in court, and likely appeal any ruling against them until it reaches the US Supreme Court, which has a 6-3 majority of Republican-appointed justices.
“The US Supreme Court only gets involved if there’s a genuine basis for litigating over enough ballots that could make a difference,” said Edward Foley, a professor at The Ohio State University Moritz College of Law.
“It’s going to take at least several days to have a sense of what the landscape really looks like,” he added. “We’re still in the beginning.”
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