While President Donald Trump wants the US Supreme Court to intervene in a presidential race that is still too close to be called, he may not be the final arbiter in this election, legal experts said.
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They said it was doubtful that the courts would admit to an offer by Trump to stop the counting of ballots received before or on Election Day, or that any dispute a court could handle would change the trajectory of the race in highly contested states like Michigan and Pennsylvania.
With ballots still tallied 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 criticized voting by mail during the election campaign, saying, without providing evidence, that it led to fraud, which is rare in American elections. Following that theme, Trump said: “This is a huge fraud in our nation. We want the law to be used appropriately. So we will go to the Supreme Court of the United States. We want the voting to stop. “
Trump did not provide any evidence to support his fraud claim or detail what litigation he would initiate in the Supreme Court. Later that day, his campaign came forward to intervene in an already pending Supreme Court case that sought to block vote-by-mail ballots arriving late in Pennsylvania.
The Trump campaign and other Republicans have also filed several complaints in other states, including an attempt to stop the vote count in Michigan.
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As of Wednesday night, the election was still up for grabs. A handful of highly controversial states could decide the outcome in the next few hours or days, as a large number of ballots cast by mail amid the coronavirus pandemic appear to have prolonged the process.
However, legal experts said that while there could be objections to ballots or voting and counting procedures in particular, it was unclear whether such disputes would determine the end result.
Ned Foley, an expert in electoral law at Ohio State University, said the current elections do not have the ingredients that would create a situation like in the 2000 presidential race, when the Supreme Court ended a recount in favor of George W. Bush vs. Democrat Al Gore.
“It is very early, but at the moment it does not seem clear how this would end where the Supreme Court of the United States would be decisive,” Foley said.
Both Republicans and Democrats have amassed armies of lawyers ready to go to the canvas in a close race. Biden’s team includes Marc Elias, one of Perkins Coie’s top election attorneys, and former attorneys general Donald Verrilli and Walter Dellinger. Trump’s attorneys include Matt Morgan, the president’s campaign general counsel, Supreme Court litigator William Consovoy and Justin Clark, the campaign’s senior adviser.
Trump’s attorney, Jenna Ellis, on Wednesday defended Trump’s attempt to challenge the vote count and evaluate his legal options. “If we have to go through these legal challenges, that is unprecedented,” Ellis told Fox Business Network in an interview. “He wants to make sure the elections are not stolen.”
The case closest to being resolved by the Supreme Court is the Pennsylvania dispute in which Republicans are challenging a September Pennsylvania superior court ruling allowing mail-in ballots postmarked and received on Election Day. up to three days later.
The Supreme Court previously refused to expedite a Republican appeal. But three conservative judges left open the possibility of retaking the case after Election Day.
Even if the court did take the case and rule for Republicans, it may not determine the final vote in Pennsylvania, as the case only concerns ballots received in the mail after Nov. 3.
David Boies, who represented Gore in 2000, said the Trump campaign is unlikely to succeed in a potential third effort to block the extended term.
“I think it’s more of a posture and a hope than anything else,” Boies said, adding that Pennsylvania’s outcome could even become irrelevant, depending on the outcome in Michigan and Wisconsin.
In another Pennsylvania case brought in federal court in Philadelphia, Republicans accused officials in suburban Montgomery County of illegally counting mail-in ballots early and also giving voters who submitted defective ballots a chance to retry. vote.
If Biden gets 270 electoral votes without needing Pennsylvania, the likelihood of a legal fight in that state decreases in any case, legal experts said.
And any challenge would also have to work its way through the usual judicial hierarchy.
“I believe the Court would summarily reject 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 School of Law at Austin.
“Even Bush v. Gore went through Florida state courts first.” added.
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