Any challenge to election result will have to make its way through the lower courts first.
President Donald Trump said he will go to the U.S. Supreme Court because he wants “all voting to stop,” as he tries to hold on to early election leads in key battleground states.
He won’t be able to go there immediately.
Cases typically work their way to the nation’s highest court after a ruling by a local judge and then other appeals courts. In 2000, it took more than a month before the Supreme Court issued the landmark Bush v. Gore ruling that ultimately decided that year’s election.
As counting continues in states including Pennsylvania, Wisconsin and Michigan, Trump said in an early morning speech — in which he also falsely claimed victory — that the tabulation delays were an “an embarrassment to our country.”
“This is a major fraud on our nation,” Trump said. “We want the law to be used in a proper manner.”
Biden’s campaign said it had legal teams ready to counter any lawsuits brought by the Republican Party.
“If the president makes good on his threat to go to court to try to prevent the proper tabulation of votes, we have legal teams standing by ready to deploy to resist that effort, and they will prevail,” Biden’s campaign manager, Jen O’Malley Dillon, said in a statement.
Trump didn’t lay out any grounds for a possible challenge, and it’s not clear what irregularities his lawyers would target, said Nicholas Whyte, who runs an election blog for APCO Worldwide, a consulting firm in Brussels.
“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.
One longtime Republican lawyer said that Trump might have difficulty stopping votes that came in on or before Election Day from being counted.
There are “recount laws if the margins are close enough,” but the bar to stop or reject an ongoing vote is much higher, Ben Ginsberg, who advised George W. Bush in 2000, said on CNN. “I don’t know how to a large extent he’d be able justify a law to just bypass the state procedures and disenfranchise people who’ve legally cast their ballots.”
Other lawsuits on various issues, however, are already in the works that could wind their way through the appellate process quickly.
Republicans in Pennsylvania on Tuesday filed a lawsuit in one one county in the Philadelphia suburbs, alleging that officials illegally allowed mail-in ballots to be counted before Election Day. A hearing is scheduled for Wednesday at 9 a.m.
“Pennsylvania is the key state,” Whyte said. “”I imagine any legal action will be fast-tracked but we haven’t seen what the basis for any legal action is yet. The counting officials have been doing exactly what they said they would do.”
In another case involving Pennsylvania, the Supreme Court last month left in place an extension that would allow the state to count ballots received as many as three days after the Nov. 3 election.
The justices may revisit the question, and ballots received after Tuesday are set to be kept separate, pending further litigation.
