Could the Supreme Court still save Donald Trump?

The 2020 US election has been a tense affair. Polls leading up to the contest indicated that the Democratic candidate, Joe Biden, might win handily. On Election Day, however, Trump scored an early win in Florida and had initial leads in some of the key battlegrounds that tipped things his way in 2016. But as state election officials counted the immense number of mail-in ballots, demonstrating courage, discipline and integrity, the balance, as expected, shifted in Biden’s favor and he was ultimately declared the winner on November 7, with 306 electoral votes to Trump’s 232.

Even in the weeks leading up to November 3, Trump had been making broad and baseless accusations of “massive fraud”, claiming that the Democrats wanted to “steal the election” and saying that he would “take his case” to the Supreme Court if didn’t win. Trump’s attitude demonstrates just how little he knows about the American judicial system – not just the need to produce evidence when claims of fraud are made, but also the checks and balances inherent to the US Constitution, in particular the judiciary.

Trump has never been much for mystery. When Justice Ruth Bader Ginsburg passed away on September 18, he quickly selected the conservative judge Amy C. Barrett to replace her and pushed for her confirmation before the election. This went against the principle established by the Republicans themselves in 2016 – that a new justice should be named after the presidential election so that voters could make their voices heard. Trump’s intent was clear: he wanted to ensure that there would be six Republican-leaning justices so that, should a case come before the court that could affect the outcome of the election, he could in theory count on their support.

The historical precedent was the 2000 presidential election, when the Court’s highly controversial Bush v. Gore decision stopped the recount in Florida and in effect gave the presidency to George W. Bush. But while the 2020 election was certainly tense, it wasn’t at all the same situation as two decades earlier. The situation in 2000 involved just 537 votes at the recount stage in one state. In 2020, Trump suffered clear losses in a series of swing states, with no evidence of significant irregularities, much less “massive fraud”.

The need for a “federal question”

The primary role of the Supreme Court is as an appellate court, ruling on disputes that have already passed through federal or state courts. It has original jurisdiction only in issues between states or pertaining to ambassadors.

According to the US Constitution, elections are organized at the state level, and it is for them to decide matters such as the number of polling stations, early voting, the threshold at which a recount may be requested, and so forth. Election disputes and litigation thus must first be heard before the states’ courts – first in trial courts, then appellate courts and, if necessary, to the state supreme court. For a case to be handled by the federal courts, there needs to be a “federal question” that involves the Constitution or federal law. For the Supreme Court to grant a request to review a case, at least four justices must accept it.

In 2000, the Supreme Court was criticized for accepting Bush v Gore, thus getting entangled in the “political thicket”. The justices could have left the issue to the mechanisms provided by the Constitution and federal law (USC §5 & 6). The reasoning of the conservative majority of justices was that the recount dispute in Florida had to be settled to meet the “safe harbor deadline”. In its ruling, the court wrote that the principle of “equal protection of the laws” as guaranteed by the 14th Amendment had been violated by the use of different methods of recounting in different counties. The Republican Party’s request to stop the recount was therefore granted. In their dissenting opinion, the minority justices harshly critiqued the ruling, “which has forever damaged the Court’s legitimacy”.

What about 2020?

This time around, Chief Justice John Roberts is acutely aware that should a case come before the conservative-leaning court that could affect the Electoral College balance, Trump – while having received 6 million fewer votes than Joe Biden – might be elected to a second term. Regardless of the legal grounds, if any, the decision would rightly be seen as partisan and ideological – and the credibility and legitimacy of the court would be dealt yet another severe blow. The risk was real because with Barrett on the court, Roberts no longer holds the deciding vote and is not necessarily in a position to prevent four of his conservative colleagues from accepting the case and five of them from ruling in the incumbent president’s favor – if such a case existed, which has so far turned out not to be the case.

Since Trump’s election loss, Republicans have launched dozens of lawsuits in federal courts and various swing states and nearly all have been promptly dismissed, including at least nine in Pennsylvania and four in Michigan. In Texas, both a federal court and the state’s supreme court denied two Republican requests to throw out nearly 130,000 ballots that had been cast at drive-through polling sites in Harris County, which is heavily Democratic. In federal court, US District Judge Andrew Hannon, appointed by President George W. Bush, denied the request from GOP candidates, ruling that the plaintiffs did not have standing to sue.

Despite all the machinations and overheated rhetoric, states have been steadily certifying their election results: Georgia on Nov. 20, Michigan on Nov. 23, Pennsylvania and Nevada on Nov. 24, and Arizona and Wisconsin on Nov. 30. When recounts are conducted, mistakes are rare and even then, don’t always work out as the plaintiffs wanted. After a recount in two Wisconsin counties for which Trump paid $3 million, it was Biden who came out ahead, gaining 257 additional votes.

The hard truth

While the president has continued to claim that the election was “rigged” and “stolen”, reality seems to be sinking in. In an November 29 interview with Fox News, Trump asserted that it was “on to SCOTUS”, but added, “the problem is, it’s hard to get into the Supreme Court”.

At this point, it is highly unlikely that the Supreme Court would accept a case that could tip the balance of the 2020 election, even if such a case existed. And even if, say, Trump’s “elite strike force team” were somehow able to move Pennsylvania to his column, that still wouldn’t be enough. Thus barring completely implausible developments, Donald Trump’s time in the White House will end at noon on January 20, 2021.

This article was translated from the French by Rosie Marsland for Fast ForWord and Leighton Walter Kille of The Conversation France.

By Anne E. Deysine, Professeur émérite juriste et américaniste, spécialiste Etats-Unis, questions politiques, sociales et juridiques (Cour suprême), Université Paris Nanterre – Université Paris Lumières

This article is republished from The Conversation under a Creative Commons license. Read the original article.