The way Tuesday’s presidential election unfolded seems to increase the narrow possibility that litigation and courts could play a role in determining the outcome — but definitely not in the way President Donald Trump has suggested.
The situation on Wednesday had all the ingredients needed to potentially allow lawyers to push the election from the ballot box to courtrooms. Vote tallies between Trump and Democratic challenger Joe Biden appeared extremely tight in several key states that are yet undecided and ultimately could determine the winner.
Rudy Giuliani, a member of Trump’s legal team, said he was headed to Philadelphia over “major cheating.” And Trump’s campaign announced it would seek a recount in Wisconsin. A recount in Florida in 2000 led to the Supreme Court ruling in Bush v. Gore, although the 21,000-vote lead for Biden is much larger than George W. Bush’s eventual 537-vote margin of victory.
Trump, in a series of tweets Wednesday about changes to vote totals favoring Biden due to mail-in ballot counts in key states, questioned the veracity of counts. “WHAT IS THIS ALL ABOUT?” he tweeted, referring to another tweet about vote counts that said it was enough to go to court.
Those states, including Michigan, Wisconsin and Pennsylvania, processed large numbers of mail-in ballots overnight that could shift the apparent winner as the results are posted. And Trump, in an early morning speech, falsely claimed victory and called the election “a major fraud on our nation.”
“We want the law to be used in a proper manner,” Trump said. “So we’ll be going to the U.S. Supreme Court. We want all voting to stop.”
But that’s not how it works.
Bob Bauer, the top lawyer for the Biden campaign, noted Wednesday morning that Trump’s lawyers weren’t at the Supreme Court. Trump can file lawsuits in a state to stop counting, Bauer said, and he’ll lose, and then lose at appeal — and then ask the Supreme Court to hear it.
“I don’t know what that case is going to be. As I told you, it’s impossible to imagine it will have any merit. In fact, I’d have to say it’s laughably without merit,” Bauer said. “But if they want to push something up to the Supreme Court one way or the other, presumably they can do that.”
Republicans also questioned Trump’s self-stated legal strategy. Ben Ginsberg, the prominent election lawyer who led the George W. Bush campaign’s legal strategy during the disputed Florida recount in 2000, said Wednesday that there’s no natural path for Trump to go directly to the nation’s top court.
Trump would have to contest the counting of ballots under each state’s law, but right now these are votes that are already in state officials’ hands, Ginsberg told CNN.
“These are all legally cast votes, and the process of trying to toss them out for some reason would just, I think, be viewed by any court, including the Supreme Court, as just a massive disenfranchisement that would be frowned upon,” Ginsberg said.
John Bolton, Trump’s former national security adviser who also worked on the Bush recount team in 2000, called Trump’s comments that the election would be stolen “a disgrace.” Bolton said the comments were some of the president’s most irresponsible because he cast doubt on the integrity of the electoral process.
“Challenges that would come to the Supreme Court have to work their way up through a variety of lower courts,” Bolton said on Sky News. “They have to be based on violations of state law or the federal Constitution. The Supreme Court cannot reach out and decide the election.”
Steve Vladeck, a University of Texas law professor, said there was nothing unusual or nefarious about what states are doing. Every state keeps counting votes after the polls close, and 20 of them count mail-in ballots that are sent on time that arrive within the next few days, he said.
Stuart Stevens, a veteran of Republican presidential campaigns, compared Trump’s request to a professional team being ahead at the end of the third quarter and wanting to sue the National Football League to stop the game.
“If the US was a country having an election under UN supervision, the UN would be putting out a statement calling the president’s statement illegal and undemocratic,” Stevens tweeted Wednesday. “That’s where we are, folks. From a shining city on a hill to a thug trying to stop democracy.”
Some lawsuits on tap
There are some lawsuits teed up already — but for them to matter in the election, the ballots that are being challenged would need to determine who would win the state, and that state would have to determine who won the election. That’s just not at all clear as of Wednesday morning.
Republicans in Pennsylvania, where full results were not out Wednesday morning, already have asked the Supreme Court to decide whether the state can tally mail-in ballots that arrive up to three days after Election Day amid concerns that mail delivery has slowed.
The Trump campaign filed a motion on Wednesday asking the Supreme Court if it could join that legal fight, writing, “Given last night’s results, the vote in Pennsylvania may well determine the next President of the United States.”
The Supreme Court declined a request from Republicans in North Carolina, where the results are close and still being tallied, to undo a state elections board decision to count ballots that arrive up to nine days late, even though the state legislature had set that at three days late because of the pandemic.
Those will be for another day, and could be important if there are other down-ballot elections that are close. But some other cases that could affect the presidential election are expected to see action in lower courts.
Late Wednesday, the Trump campaign and the Republican National Committee filed a lawsuit in Pennsylvania state court alleging that Democratic election officials extended a deadline for several days for first-time absentee voters to provide missing voter identification.
And the Trump campaign also filed late Wednesday a Georgia state lawsuit over 53 late absentee ballots they say were illegally added to a stack of on-time absentee ballots in Chatham County.
In Pennsylvania, a federal lawsuit launched by Kathy Barnette, the Republican challenger to Democratic Rep. Madeleine Dean, alleges that one suburban Philadelphia county illegally started processing mail-in ballots early.
Also in the Keystone State, Republican Rep. Mike Kelly, along with several Republican officials in the state, filed a separate suit Tuesday arguing that Democratic Secretary of State Kathy Boockvar illegally told election officials to open ballots early and contact voters who might need to cast provisional ballots.
In Minnesota, Republicans are asking federal courts to block the counting of mail-in ballots that arrive after Tuesday.
In Washington, D.C., a federal judge on Wednesday ordered immediate testimony from a top U.S. Postal Service official about why the agency did not comply with his order to sweep facilities Tuesday for about 300,000 mail-in ballots that did not have confirmed deliveries.
Voting rights advocates were in court to seek another order ensuring that the Postal Service would seek those ballots out for states such as Pennsylvania and North Carolina where they can still be delivered in time to be counted.
U.S. District Judge Emmet G. Sullivan said Wednesday that “someone may have a price to pay” for the government’s 11th-hour notice that it couldn’t comply with Sullivan’s order.
The judge said it leaves a bad taste when the Postal Service would run out the deadline for ballots to get to election officials on Tuesday, “game’s over, and then find out there was not compliance with a very important court order.”
Bauer said Biden’s campaign will defend the election.
“We don’t have to do anything but protect the rights of voters and to stand up for the democratic process,” Bauer said. “If it’s attacked, as the president suggested it will be attacked, we’re going to successfully repel that attack.”