Could courts again decide US election?
While President Donald Trump wants the US Supreme Court to weigh in on a presidential race that is still too close to call, it may not be the final arbiter in this election, legal experts said, adding it might not also prevent states declaring a winner.
They said it was doubtful that courts would entertain a bid by Trump to stop the counting of ballots that were received before or on Election Day, or that any dispute a court might handle would change the trajectory of the race in closely fought states such as Michigan and Pennsylvania.
After Trump declared he was ready to go to the US Supreme Court to dispute the vote counting, his campaign announced a recount demand in Wisconsin and lawsuits in Michigan and Pennsylvania, three states critical to winning the presidency. In Michigan, the Trump campaign sued to halt ballot counting saying they were not given "meaningful access."
Late Wednesday the Trump campaign filed suit in a fourth battleground, Georgia, as the president's lead there shrank to less than a percentage point. The Georgia suit wants counties to "separate any and all late-arriving ballots from all legally cast ballots" that arrived by the 7:00 pm Election Day deadline, Trump deputy campaign manager Justin Clark said.
Americans cast more than 65 million mail-in-ballots in 2020 election.
However, legal experts said that while there could be objections to particular ballots or voting and counting procedures, it was unclear if such disputes would determine the final outcome.
Ned Foley, an election law expert at Ohio State University, said the current election does not have the ingredients that would create a situation like in the 2000 presidential race, when the Supreme Court ended a recount in George W Bush's favor against Democrat Al Gore.
"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.
Both Republicans and Democrats have amassed armies of lawyers ready to go to the mat in a close race.
Trump attorney Jenna Ellis on Wednesday defended Trump's bid to challenge the vote count and evaluate his legal options. "If we have to go through these legal challenges, that's not unprecedented," Ellis told Fox Business Network in an interview. "He wants to make sure that the election is not stolen."
The case closest to being resolved by the Supreme Court is the Pennsylvania dispute in which Republicans are challenging a September ruling by Pennsylvania's top court allowing mail-in ballots that were postmarked by Election Day and received up to three days later to be counted.
The Supreme Court previously declined to fast-track an appeal by Republicans. But three conservative justices left open the possibility of taking up the case again after Election Day.
Even if the court were to take up the case and rule for Republicans, it may not determine the final vote in Pennsylvania, as the case only concerns mail-in ballots received after Nov. 3.
David Boies, who represented Gore in 2000, said it is unlikely that the Trump campaign would succeed in a possible third effort to block the extended deadline.
"I think that it's more posturing and hope than anything else," Boies said, adding that the Pennsylvania outcome could even become irrelevant, depending on the result in Michigan and Wisconsin.
In a separate Pennsylvania case filed in federal court in Philadelphia, Republicans have accused officials in suburban Montgomery County of illegally counting mail-in ballots early and also giving voters who submitted defective ballots a chance to re-vote.
If Biden secures 270 electoral votes without needing Pennsylvania, the likelihood of a legal fight in that state diminishes in any case, legal experts said.
And any challenge would also need to make its way through the usual court hierarchy.
"I think the Court would summarily turn away any effort by the President or his campaign to short-circuit the ordinary legal process," said Steve Vladeck, a professor at the University of Texas at Austin School of Law.
"Even Bush v. Gore went through the Florida state courts first."