Legal challenge: Can lawsuits persuade judges to halt counts?
President Trump’s campaign returned to the Supreme Court on Wednesday to try to block further counting of absentee ballots in Pennsylvania, saying the votes there “may well determine the next president of the United States.” The campaign sued in Michigan to halt votecounting, claiming it had been denied proper access to sites where ballots were opened and tallied. Other suits challenged absenteeballot processing in Nevada’s largest county, and latearriving ballots in a Georgia county.
But legal observers aren’t expecting judicial intervention on any of the cases, even from the most conservative Supreme Court in many decades.
“The hope is that these Hail Mary legal plays could lead to court intervention to throw out votes and help Trump capture one of these states. This is possible but very unlikely,” UC Irvine law Professor Richard Hasen said Wednesday on his “Election Law” blog.
One reason, he said, is that even a Trump legal victory in Pennsylvania, the state whose
case has already reached the high court, may not be enough to affect the results either statewide or nationwide. If Democrat Joe Biden holds his lead in other contested states, including Nevada and Arizona, he would not need Pennsylvania to win the White House.
Trump “can’t stop the counting of valid votes,” Edward Foley, an Ohio State University election law professor, said in a Washington Post column. “And while he is threatening to race to the Supreme Court to overturn any result against him, that, too, is likely to be a losing play — even with the bolstered conservative majority.”
Even if the court decided that Pennsylvania’s Supreme Court lacked authority to extend the state’s deadline for receiving and counting absentee ballots, Foley said, voters relied on the state court’s timetable when mailing their ballots, and the nation’s high court is unlikely to penalize them by disqualifying their ballots.
The Supreme Court’s conservative majority includes three justices — Brett Kavanaugh, Amy Coney Barrett and Chief Justice John Roberts — who worked on the legal team for Republican George W. Bush that in 2000 persuaded the Supreme Court to halt counting of disputed ballots in Florida and award the presidential election to Bush.
The Trump campaign’s postelection lawsuit in Michigan, challenging the continued counting of ballots in selected counties, “should be giving us flashbacks to 2000,” said Jenny Breen, an associate law professor at Syracuse University. She said she expects the campaign to ask state courts, and ultimately the Supreme Court, to disqualify some ballots that have already been counted.
But unlike 2000, Breen said, Trump’s campaign has not yet cited any state in which disputed votes could change the outcome of the election.
“It does not seem at this point that there’s an obvious vehicle” to reach the Supreme Court, Breen said in an interview. But she said the Republicanappointed justices — including Clarence Thomas, part of the 54 majority that decided the 2000 election — “have demonstrated some
“The hope is that these Hail Mary legal plays could lead to court intervention to throw out votes and help Trump capture one of these states. This is possible but very unlikely.” Richard Hasen , UC Irvine law professor, on his “Election Law” blog
willingness to intervene in a presidential election.”
Michael McConnell, a Stanford constitutional law professor and former federal appeals court judge, said Wednesday he could not think of any valid legal argument to stop ballotcounting.
“At most, courts might order that Trump representatives be permitted to observe if they are being wrongfully excluded, and perhaps even to review some of the ballots already counted,” but not to halt the counts or discard the ballots, McConnell said. “If Biden wins without Pennsylvania, I think we will be spared the 2000 spectacle.”
The campaign’s suit to halt ballotcounting in heavily Democratic Clark County, Nev. — the location of Las Vegas — was rejected Tuesday by the Nevada Supreme Court, which found no evidence that the county’s ballot-screening technology was faulty or that its rules prevented Republican observers from viewing ballotcounting. The suit was filed under state law.
Late Wednesday, according to the Associated Press, the Trump campaign filed suit against election officials in Democraticleaning Chatham County, Ga., seeking a hold on ballots that arrived after 7 p. m. on election day, a deadline set by state law.
The Pennsylvania case arose from a ruling by the state’s Supreme Court allowing local election officials to count mailed ballots that are postmarked by Nov. 3 and arrive three days later, extending an election day deadline set by the Republicancontrolled Legislature. The state court, with a majority of Democratic justices, cited COVID19 and the resulting surge in absentee ballots.
When Pennsylvania Republicans asked the U. S. Supreme Court two weeks ago to bar counting of ballots arriving after the election, the court deadlocked 44, with Roberts joining the three liberals. The Republicans sought another preelection ruling last week after Trump’s nomination of Barrett was confirmed by the Senate, but the court turned them down. Barrett did not participate, saying through a court spokeswoman that she lacked time to review the legal arguments.
But Justices Thomas, Samuel Alito and Neil Gorsuch said the court should take up the case after the election and decide whether to disqualify ballots received after the election. Alito, writing for the three, said there was a “strong likelihood that the state Supreme Court decision violates the federal Constitution,” which authorizes state legislatures to set rules for elections.
Gorsuch, dissenting in a similar case from North Carolina, said allowing lower courts to extend ballotcounting deadlines because of the pandemic would “risk altering election outcomes, and in the process threaten voter confidence in the results.”
Trump sounded a similar theme after the nation’s last polls closed Tuesday night.
“We’ll be going to the U. S. Supreme Court. We want all voting to stop,” the president told supporters at the White House. “This is a fraud on the American public.”
Biden’s campaign professed no concern about the court cases. Biden’s legal adviser, Bob Bauer, said the campaign was not sending legal representatives to the state courts where Trump has sued. Lawyers for the states are defending those cases.
But if any election cases wind up before the Supreme Court, Bauer told reporters, Trump “will be in for one of the most embarrassing defeats. ... We’re going to defend this vote.”