Trump Said He Will Challenge the Result in SCOTUS. But Can He?

Trump has said that he and his team would be going to the US Supreme Court to dispute the election counting.

3 min read
US President Donald Trump said that he and his team would be going to the US Supreme Court to dispute the election counting.

After months of casting doubt over the US presidential election, US President Donald Trump said that he and his team would be going to the US Supreme Court to dispute the election counting.

“We’ll be going to the US Supreme Court. We want all voting to stop...We are going to win this and as far as I’m concerned, we have already won,” Trump reportedly said during his late night briefing from the East Room in the White House, calling it a “fraud on the American public”.

Trump’s statement on Tuesday night did not come as a surprise. But there are some questions that arise over his threat.

Could SCOTUS get involved in settling the election?

The US Supreme Court may be filled with conservative nominees appointed at the behest of Trump, but it remains the final court of appeal. Since SCOTUS has discretion over the cases it hears, most of the action related to any cases Trump’s campaign files will first be played out in lower, state-level courts, reports The Guardian. And election challenges reaching state-level courts is nothing out of the ordinary.

Similarly, Steve Vladeck, a professor at the University of Texas at Austin School of Law told Reuters that the Supreme Court could reject any efforts to short-cut the legal process.

Professor Briffault, a Columbia University Law School professor Richard told BBC that while opposing campaigns could dispute close contests in crucial states, they would still need a case from which a constitutional concern arises in order to be able to reach the Supreme Court.

Matthew Weil, director of the Bipartisan Policy Research Center’s elections project tells BBC that the Supreme Court does not have a power to stop the legal counting process.

Further, the Supreme Court accepts “actual disputes, not abstract propositions”, according to The New York Times.


Has SCOTUS ever gotten involved before?

The presidential election in 2000, when George Bush edged out Al Gore, is so far the only one decided by the Supreme Court.

However, Ned Foley, an election law expert at Ohio State University, told Reuters that the election at hand does not seem to be following in the footsteps of the Bush vs Gore election.

“It’s extremely early on but at the moment it doesn’t seem apparent how this would end up where the US Supreme Court would be decisive,” Foley said.

What are the legal challenges issued by Trump?

As the vote counts across crucial battleground states keep pouring in, the Trump Campaign has filed lawsuits in the states of Georgia, Michigan and Pennsylvania, laying the groundwork to challenge the election results. The president’s campaign has also demanded a vote recount in the state of Wisconsin.

The allegations ensuing from the Trump Campaign are that there is voter fraud, that Democrats are “scheming to disenfranchise and dilute Republican votes” and complaints over lack of access to observe the opening of ballots and the counting process.

These come in addition to multiple existing suits filed by Republicans on similar issues regarding voting in key states such as Pennsylvania.

The overarching strategy is clearly to claim that measures taken to make voting safer amid the pandemic have allowed voter fraud, making it unconstitutional, while the other is to raise a hue and cry about the fact that these decisions have been taken by state officials rather than legislature, reports The Guardian. Both would appear to lead to the Supreme Court.


What would the lawyers attempt to do?

A common way to challenge an election would be to question how it was conducted and have ballots thrown out. Alternately, the election result could be challenged and a recount sought in state-level courts. In such a case, the Supreme Court could become involved if asked to overturn such a ruling.

With regard to Pennsylvania, the involvement of the Supreme Court is a possibility, with Republicans having already appealed against a state court decision allowing mail-in ballots that arrive up to three days after the election to be accepted.

(With inputs from BBC, Reuters and The Guardian.)

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