What To Know If Presidential Election Results Go To Supreme Court

WASHINGTON, DC — During an early morning speech Wednesday from the White House, President Donald Trump claimed victory in the 2020 presidential election and vowed he would take the election to the Supreme Court to stop the counting of ballots after Election Day.

In his statement, the president claimed without evidence that continued vote counting after Election Day was a "fraud" on the American public and that "a sad group of people is trying to disenfranchise" the millions of Americans who had voted to give him another term.

Meanwhile, former Vice President Joe Biden's campaign said it will fight any efforts by the president to go to the U.S. Supreme Court to prevent outstanding ballots from being tabulated.

Biden campaign manager Jen O'Malley Dillon said in a statement just before 4 a.m. Wednesday that Trump's statement that he will "be going to the U.S. Supreme Court" to stop vote counting is "outrageous, unprecedented and incorrect."

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Later on Wednesday, O’Malley Dillon insisted during a strategy call with reporters that Biden “will be the next president of the United States.”

Questions are inevitably swirling about the legality of the threats and what power the Supreme Court has at this point and in an unprecedented situation like this.

Here’s what we know so far:

1) Can Trump actually make that threat?

It’s not as straightforward as Trump makes it sound.

“I do not see a way that he could go directly to the Supreme Court to stop the counting of votes. This is not the way things work,” Rick Hasen, a professor of law and political science at the University of California-Irvine, told The Associated Press.

First, Trump’s allegation that ballots counted after Election Day are “fraudulent” is simply untrue. Several states are legally allowed to continue counting ballots after Election Day, and it may be days — or even weeks — before complete results are in.

Nearly half of U.S. states allow ballots to come in after Nov. 3 as long as they’re postmarked by Nov. 3. About 30 states also allow voters to correct errors on their mailed ballots, some with a grace period of a couple days after Election Day, according to a report by The Washington Post. These laws were in place long before the coronavirus pandemic caused a surge in early voting.

If states were to do what Trump wants, the election would be decided on unofficial results rather than official results, which is unconstitutional and what many view as undemocratic.

“The close of the polls is not the end of an election,” the nonpartisan National Conference of State Legislatures told the Post.

Official results take time, so much so that federal election law gives states more than a month post-Election Day to count and certify results. This is why the Electoral College doesn’t meet until mid-December to officially vote, according to the Post.

2) Legal challenges will go to state courts before the Supreme Court.

At first, it was unclear what path the current president and his campaign team would take. However, as the process continued to unfold on Wednesday, the Trump campaign moved forward with legal action, filing lawsuits in Pennsylvania and Michigan.

The campaign said it is calling for a temporary halt in the counting in both states until it is given “meaningful" access in numerous locations and allowed to review ballots that already have been opened and processed.

Trump is running slightly behind Biden in Michigan. The president is ahead in Pennsylvania but his margin is shrinking as more mailed ballots are counted.

Still, the U.S. Supreme Court remains the final court of appeal in the United States and has discretion over which cases it should hear. Most cases would be heard at the state level long before reaching the Supreme Court.

“Of course, before it went to the Supreme Court, it would have to go to local courts anyway, so this talk of taking it straight to the Supreme Court is an exaggeration that couldn’t be done,” Whyte said.

While election challenges at the state level are nothing new, this year in particular opened itself up to increased legal scrutiny as states looked for and put in place safer ways to vote amid the coronavirus pandemic. This included expanding absentee ballot eligibility, which also prompted court challenges about the period in which late mail-in votes can be counted.

Pennsylvania is a key state where many of these arguments are already going before lower courts, two of which will be heard Wednesday.

3) How will it work if results do go to the Supreme Court?

While election challenges in state courts are nothing new, they often have little impact on the final results. One important exception, The Guardian notes, was the 2000 election where a series of legal challenges over faulty voting procedures in Florida landed at the Supreme Court and eventually handed the election to George W. Bush.

Before a case reaches the Supreme Court, however, the most common scenario is for lawyers to challenge the way an election was conducted locally and seek to have votes discarded.

Many state courts require a high burden of proof to rule in favor of challenges. Pennsylvania is among those states, according to The Guardian, and requires written affidavits from plaintiffs detailing wrongdoing.

Pennsylvania is already on the U.S. Supreme Court’s radar. Republicans in the state have already filed an appeal against a Pennsylvania Supreme Court decision ordering state election officials to accept mail-in ballots that arrive up to three days after the election.

The U.S. Supreme Court declined to hear this case before the election. It did, however, side with Republicans in Wisconsin by deciding the state could not count late mail-in ballots.

In the ruling, Chief Justice John Roberts was clear that both states represented “different bodies of law and different precedents” — meaning the Supreme Court did not consider the situations in Pennsylvania and Wisconsin to be the same, and would likely decide to hear any cases on a state-by-state basis.

The elephant in the room, however, is the recent appointment of Amy Coney Barrett to the Supreme Court.

Both the Pennsylvania and Wisconsin cases were decided before her confirmation last week, and Trump is no doubt counting on the 6-3 conservative majority that comprises the country’s highest court. At this point, though, it’s unclear whether Barrett would participate in any hearings or if she would recuse herself.

4) How are Democrats responding?

The day after Election Day, the Biden camp remains confident and unfazed.

In Wednesday's strategy call with reporters, Biden campaign manager O’Malley Dillon said the former vice president is “on track to win this election.”

O’Malley Dillon went on to say that Biden’s strategists believe he will have more than 270 electoral votes by Wednesday afternoon and is expected to pick up key battleground states Wisconsin, Michigan and Pennsylvania.

Other Democrats have been vocal and clear in their condemnation of the president’s comments and baseless accusations of election fraud.

“When Donald Trump says, ‘I think I deserve a third term, or I think the election should end on election night, that’s the way it’s always been,’ I don’t think he’s joking. I think we should take him deadly seriously,” Democratic senator and top Joe Biden surrogate Chris Coons told Politico.

Despite insisting privately they are disgusted by Trump’s threats, Republicans, however, remain publicly silent.

5) What’s the worst-case scenario here?

The closer the Electoral College votes, the messier things become, The Guardian predicts.

While hardly a comparison, the 2000 presidential election remains the closest scenario. The narrow margin in results led to 35 days of legal challenges and grueling hand recounts. Ultimately, the state of Florida went to Bush after the state was originally called for Democratic challenger Al Gore.

After a recount was halted by the Supreme Court, Bush took 271 of the 538 electoral votes, winning Florida by fewer than 600 votes. This made Bush the first Republican president since 1888 to win despite losing the popular vote.

This article originally appeared on the White House Patch