President Donald Trump has repeatedly said there’s one place he wants to determine the outcome of the presidential election: the U.S. Supreme Court. But he may have a difficult time ever getting there.
The Associated Press called the presidential race for Joe Biden on Saturday morning. Trump, however, has over the last few days leaned in to the idea that the high court should get involved in the election as it did in 2000, and there were no signs Saturday he was ready to concede.
“Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated,” Trump said in a statement.
In 2000, the Supreme Court effectively settled the contested election for President George W. Bush in a 5-4 decision that split the court’s liberals and conservatives. Today, six members of the court are conservatives, including three nominated by Trump. But this year’s election seems to be shaping up very differently from 2000, when Florida’s electoral votes delivered the presidency to Bush.
Then, Bush led in Florida and went to court to stop a recount. Trump has suggested a strategy that would focus on multiple states where the winning margins appear to be slim. But to overturn the election result, Trump would appear to have to persuade courts, including perhaps the Supreme Court to set aside votes in two or more states.
Chief Justice John Roberts, for his part, is not likely to want the election to come down to himself and his colleagues. Roberts, who was not on the court for Bush v. Gore in 2000 but was a lawyer for Bush, has often tried to distance the court from the political branches of government and the politics he thinks could hurt the court’s reputation.
It’s also not clear what legal issues might cause the justices to step in. Trump has made repeated, unsubstantiated claims of election fraud. On Saturday, Trump attorney Rudy Giuliani pressed claims that so-called poll watchers, who observe as ballots are counted, were not allowed to get close enough to witness counting.
Still, Trump has focused on the high court. In the early morning hours following Election Day he said: “We’ll be going to the U.S. Supreme Court — we want all voting to stop.” And on Thursday, as Biden inched closer to the 270 Electoral College votes needed to win the White House, Trump again told Americans, “It’s going to end up, perhaps, at the highest court in the land, we’ll see.” On Twitter too he urged, “U.S. Supreme Court should decide!”
There is currently one election case at the Supreme Court and it involves a Republican appeal to exclude ballots that arrived after Election Day in Pennsylvania. But whether or not those ballots ultimately are counted seems irrelevant.
Ballots received after 8 p.m. on Election Day were a small fragment of the total vote count. Across Pennsylvania, counties reported receiving under 8,000 late mail-in ballots, though some were still assessing how many they had. Biden’s lead over Trump by Saturday afternoon was more than 30,000 votes.
Still, Trump’s campaign is trying to intervene in the case, an appeal of a decision by Pennsylvania’s highest court to allow three extra days for the receipt and counting of mailed ballots. Because the case is ongoing, those ballots are being separated but counted.
Beyond the Pennsylvania case, if Trump wanted to use a lawsuit to challenge the election outcome in a state, he’d need to begin by bringing a case in a lower court.
So far, Trump’s campaign and Republicans have mounted legal challenges in several states, but most are small-scale lawsuits that do not appear to affect many votes. On Thursday, the Trump campaign won an appellate ruling to get party and campaign observers closer to election workers who are processing mail-in ballots in Philadelphia. But judges in Georgia and Michigan quickly dismissed two other campaign lawsuits Thursday.
Biden’s campaign, meanwhile, has called the existing lawsuits meritless, more political strategy than legal. Biden lawyer Bob Bauer on Thursday called the lawsuits “an opportunity for them to message falsely about what’s taking place in the electoral process.”