Trump wants the Supreme Court to help him win the election. It's unlikely — but still possible

Trump's collapsing poll numbers could scuttle his plan to take the election to court, says expert Rick Hasen

By Igor Derysh

Managing Editor

Published October 29, 2020 5:00AM (EDT)

Amy Coney Barrett, Brett Kavanaugh and Donald Trump (Photo illustration by Salon/Getty Images)
Amy Coney Barrett, Brett Kavanaugh and Donald Trump (Photo illustration by Salon/Getty Images)

President Trump has repeatedly tried to cast doubt on the results of the presidential election and signaled that he hopes the Supreme Court's conservative majority can deliver him a win — but election law experts say that scenario is increasingly implausible because Trump has fallen so far behind in the polls.

"It is unlikely the Supreme Court will decide the 2020 elections because it would have to be so close in a state pivotal to the Electoral College that litigating could make a difference," Rick Hasen, an election law expert at the University of California Irvine School of Law, told Salon. "That's what happened in 2000 and it could happen again, but odds are against it. If cases do get to the court, we have seen the court divide along ideological and party lines in some key election cases. I hope that would not be the case in 2020."

Trump has said that his campaign's litigation over mail voting expansions in key swing states could "end up in the Supreme Court" and the court's recent decisions have raised fears that it would side with the president in a dispute over ballot rules. Supreme Court Justice Amy Coney Barrett's confirmation is likely to further stack the deck in Trump's favor unless she recuses herself from election-related cases.

Even before Barrett's confirmation, the court voted 5-3 to block a district court from extending Wisconsin's mail-in ballot deadline. The court split 4-4 on a decision that allowed Pennsylvania to extend its mail-in ballot deadline, but the state's Republicans have already filed another request for the court to hear the case after Barrett's confirmation. Republicans asked a court to separate ballots sent in after Election Day to make it easier to reject them if the court decides to block Pennsylvania's deadline extension after all.

These rulings could certainly affect the outcome of certain states' elections, if a large enough percentage of ballots are affected.

"Focusing just on how [the Supreme Court] might rule after Nov. 3, when the initial tallies have already come in, misses something important: It could be that the critical ruling that will decide the 2020 race has already, today, been made by a court or elections official somewhere," said Michael Geruso, a professor at the University of Texas at Austin who studies the Electoral College. "Judges and elections administrators have already made dozens of decisions in Pennsylvania and elsewhere about how and where ballots will be accepted. These decisions have already affected voters' behaviors. Almost certainly, they have affected whether some voters have voted at all."

Geruso said that rulings made before Election Day can be just as important as a post-election ruling like the 2000 Bush v. Gore case.

"Regardless of whether SCOTUS rules on an election case after Nov. 3, it could still be the case that earlier, lower rulings — as well as judgment calls by local or state election officials in Pennsylvania and elsewhere — are affecting which ballots are cast and which ballots are counted," he said. "If these decisions could affect a few thousand votes, then the courts and officials, not the voters, could be deciding the presidency in 2020."

Conservatives on the court like Justice Brett Kavanaugh have "advanced a controversial theory about near-absolute power of state legislatures to set rules in federal elections," Hasen wrote in a Washington Post op-ed. "If Barrett does not recuse herself from election disputes next month, there's every reason to worry that a 5-4 court could interfere in the election to help Trump if a case that might swing the outcome gets before the court."

Hasen said there was a "small chance" that the court would take up the Pennsylvania case a second time, but said it is "extremely unlikely" that the court would intervene in a case that affects the outcome of the election.

But even a small chance and a small number of votes could impact hundreds of millions of people. A study by Geruso and fellow UT Austin economist Dean Spears found that there is greater than a 10% chance that just "20,000 votes or fewer could decide the Electoral College winner in a typical election year."

A "one-in-10 chance of something happening that could precipitate a legitimacy crisis is something to be concerned about," Geruso said. "If you thought there was a one-in-10 chance of your plane crashing, you wouldn't want to get on that plane!"

But a lot of things would have to happen for the election to come down to 20,000 votes. First, Trump, who trails nationally by about 8.5 percentage points, would have to make up enough ground in other states for the election to come down to a single state like Pennsylvania, where the president trails by about five points. Any litigation would have to make its way through the federal court system and the Supreme Court would have to agree to hear the case.

"I have to think that at least one of the [conservative] justices would have real qualms about upsetting the apple cart this late," Stephen Vladeck, a law professor at the University of Texas at Austin, told the Washington Post. "The court would be doing this literally on the eve of the election … past the point where at least some Pennsylvania voters would be able to cast a lawful ballot."

But conservatives on the court have made eyebrow-raising decisions in election cases already, making a break from longstanding tradition more likely.

"It is conceivable that if it all comes down to the counting of late-received ballot in Pennsylvania, the court could be dispositive," Richard Briffault, a professor at the Columbia School of Law, told Salon.

Trump has repeatedly argued in court that "courts or administrators have changed the rules beyond what the state legislature has authorized, and that those changes should not be allowed to take effect," he said. "They have had some success with this argument when the change was due to the decision of a lower federal court."

Briffault said it is also possible that "millions of ballots will be disqualified" based on the "normal 1-2% disqualification" rate of mail-in ballots for issues like missed deadlines and signature issues.

"It might be the case that a lower court or state elections system might accept ballots that arguably 'should have been' rejected, either for lateness or a signature problem, and that could be challenged to the Supreme Court," he said. "Of course, in a close election, rejecting thousands of ballots would be enough."

But Hasen stressed that "it is far from likely that the election would come down to Pennsylvania — or, even if it did, that Pennsylvania will be within the margin that litigation of the election could swing."

Beyond the 2020 election, however, "it is hard to escape the fact that the Supreme Court is poised to allow Republican states to engage in all manner of voter suppression in the name of protecting the rights of state legislatures," he said.

Geruso, who with Spears authored an earlier paper showing that the Electoral College heavily favors Republicans in close elections, noted that concerns about whether courts will determine the election winner could be alleviated in the future by switching to a national popular vote system.

"It is very, very unlikely that a small number of votes would separate the candidates nationally," he said. "Even in the closest races, hundreds of thousands or millions of votes typically separate the candidates. For 2020, there's uncertainty about the Electoral College outcome, but very little uncertainty that the popular vote spread will be enormous. Projections today suggest that Biden will win the popular vote by millions. A Biden popular vote win in the millions is likely to occur regardless of whether judicial decisions about mail-in ballots in Pennsylvania ultimately decide who becomes president."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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