While President Donald Trump has promised to ask the U.S. Supreme Court to intervene in a presidential race that is still too close to convene, the nation’s highest judicial body may not be the final arbiter in this election, they said. legal experts.
Election law experts said it is doubtful that the courts will consider an offer by Trump to stop the counting of ballots received before or on Election Day, or that any dispute a court can handle would change the trajectory of the contest in hard-fought states like Michigan and Pennsylvania.
With vote counting still ongoing in many states in the early hours of Wednesday morning, Trump made an appearance at the White House and declared victory against Democratic challenger Joe Biden.
“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, ”he said.
The Republican president did not provide any evidence to support his claim of fraud or detail what litigation he would initiate in the Supreme Court.
As of Wednesday afternoon, the elections were still in the balance. 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 on Twitter that the Supreme Court “would only be involved if there were votes of questionable validity that would make a difference, which might not be the case.”
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.
Benjamin Ginsberg, a longtime Republican election lawyer, said on CNN that any attempt to throw away legally cast votes would likely “be viewed by any court, including the Supreme Court, as a massive disenfranchisement . Ginsberg represented George W. Bush’s presidential campaign in 2000 when the Supreme Court ended a pro-Bush recount against Democrat Al Gore.
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.”
Taking a case to federal court immediately was a possibility, he added, without elaborating. “We have all the legal options on the table.”
The case that is closest to being resolved by the Supreme Court is an appeal currently pending before the justices in which Republicans are challenging a September Pennsylvania superior court ruling that allows vote-by-mail ballots to be postmarked today. of the elections and are received up to three days later. counted.
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 takes over the case and rules in favor of the Republicans, it may not determine the final vote in Pennsylvania, as the case only concerns ballots received in the mail after Nov. 3.
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.”
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