It would be Trump trying to overturn the default state count by getting the Court to overturn policies and decisions by state officials.
THE US Supreme Court
(photo credit: REUTERS)
While Democratic presidential nominee Joe Biden appears to have an advantage over US President Donald Trump in the US election, the scenario of having the Supreme Court decide the outcome is becoming less likely.
If Biden wins in Wisconsin, Michigan and Nevada, he will have 270 votes in the Electoral College and be president-elect, and the scenario by which the Supreme Court could have helped Trump will not be in play. This will only be truer if Biden wins Pennsylvania.
When Trump appointed Justice Amy Coney Barrett to the Supreme Court a week before the election, he made it explicit that this was part of his strategy to win, even by lawsuit if necessary.
Barrett could give the Supreme Court a pro-Republican and pro-Trump 6-3 majority, crucial for Trump since Chief Justice John Roberts has swung back and forth on election challenges.
Many pundits have dismissed the Supreme Court’s 2000 decision in Bush vs Gore, which handed George W. Bush the election, as a paradigm for what could come next.
These are people who do not understand how the law and judges work, especially Republican-appointed judges.
Trump’s scenarios where the Supreme Court could have stepped in on his side would have been:
1) if he was losing a key state by a few hundred votes and had a narrowly tailored challenge against a similar number of votes; or,
2) if Trump was leading after initial votes were counted as of the end of this week, but Biden was seeking additional mail-in votes to be counted, which came in later than standard rules but close enough to leave some discretion to add them in.
Trump was not losing any states by 1,700 votes or 300 votes – the examples of different minuscule numbers of votes that Gore was losing by in Florida at different stages of counting.
As of Thursday, he was losing by over 20,000 votes in Wisconsin and nearly 40,000 in Michigan. Nevada could be Trump’s best hope in theory, but predictions are that additional votes that come in will be more for Biden and will likely only increase his approximately 8,000-vote lead.
Though even these vote totals sound tiny when looking at more than 130,000,000 votes cast in the US nationwide, by standards of flipping a vote count during a recount or by tossing out some small number of questionable ballots, these numbers are historically insurmountable.
In Bush vs Gore, the Supreme Court essentially said the courts should stay out of the dispute and respect state officials. This is part of a long jurisprudence of Republicans defending state’s rights over federal intervention. That left the default win for Bush in place since it was Gore who was trying to overturn the default state count.
Here, it would be Trump trying to overturn the default state count by getting the court to overturn policies and decisions by state officials.
In Bush vs Gore, Gore wanted the Supreme Court to help him add new votes that he said were improperly disqualified. Here, Trump would be asking the court to toss out votes that the state had validated.
It would be the exact opposite of Bush vs Gore.
In addition, the current Supreme Court has already weighed in several times before Election Day.
Biden was leading Trump by over 20,000 votes in Wisconsin, and votes that Trump supporters do not want to be counted have not been – and will not be – due to a prior Supreme Court ruling.
So there is not much of a place for the court to go since the 20,000 Biden-vote lead is despite their already ruling for Trump.
Pennsylvania is one place where the Supreme Court already ruled for Biden. Adding Barrett onto the court could theoretically tip the scales in favor of Trump if he asks it to rehear an issue about mail-in ballots post-election.
But Biden does not need Pennsylvania to win the election.
And again, if Pennsylvania goes for Biden post-election, overturning that result would be the opposite of what the court did in Bush versus Gore.
So Trump is still in the game, and he may even get some tactical wins in the courts. In theory, he could also try some kind of much broader challenge to mail-in ballots beyond the typical targeted and specific challenges. But indications are that most leading Republican officials would not support such a case and that it would get nowhere before the Supreme Court.
The scenario in which the Supreme Court could have swept in to turn the election in his favor is simply not the one that is playing out before our eyes.