Washington, DC — In the early hours of Wednesday morning, President Donald Trump promised his supporters, with ballots still being counted and the election undecided: “We’ll be going to the US Supreme Court.”
The campaign followed up on Trump’s rhetoric later on Wednesday, adding itself as a party to a case pending before the Supreme Court challenging Pennsylvania’s extension of the due-date to count mail ballots.
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It is one of several motions or legal avenues Republicans have employed or discussed in battleground states, ranging from a US Supreme Court challenge to small-ball protestations of a few dozen votes in one county.
In a sense, this is the doomsday scenario election watchers were worried about; incomplete election results on the night of the election are beginning to shift to what appears to be a victory for former Vice President Joe Biden, with Trump casting doubt on the results. But ultimately, election law experts think Trump’s legal efforts will amount to little more than a last-ditch effort to try and find a way to victory as the president’s path on the electoral map narrows.
Adav Noti, who has argued before the Supreme Court as the senior director of trial litigation for the election reform group, the Campaign Legal Center, said the Pennsylvania effort marks the most serious attempt by the Trump campaign to challenge vote counting.
The case, originally filed by state-level Pennsylvania Republicans, challenges the state Supreme Court’s decision to allow state officials to count Pennsylvania ballots received as late as three days after Election Day if they are postmarked November 3 or before. They argued it was the provenance of the legislature to make those decisions. At the time, the high court declined to fast-track the case, a sign justices may view it with some suspicion, Noti said.
But Noti added that even if the case advances, it may do little to improve Trump’s success of electoral victory. That is because Pennsylvania may not matter.
The Associated Press (AP) news agency called Wisconsin and Michigan for Biden on Wednesday and he could reach the 270 electoral votes needed to take the White House if he is declared the winner in Nevada. AP has already declared him the winner in Arizona, although Trump’s press secretary Kayleigh McEnany told broadcaster Fox News on Wednesday the campaign also contests that call.
Noti said he is deeply sceptical any case could meaningfully change the election results. The Pennsylvania lawsuit would not work in other close states, he told Al Jazeera, because Wisconsin and Michigan did not extend their deadlines for mail-in ballots to be received and Nevada already had such rules in place.
“This sort of desperate litigation to change election results, it’s really unfortunate that it’s come to that, but it is looking fairly unlikely to succeed,” he said. “A lawsuit in state court to try to stop or change the ballot counting, that would be a Hail Mary in and of itself. The ‘Let’s get it to the Supreme Court’ idea that the president keeps talking about? I don’t know what that is.”
Along with Pennsylvania, Arizona and Nevada, a few other states remain undecided. Trump currently leads in North Carolina and Georgia but a Biden victory is not beyond the pale there if more absentee ballots are counted in deeply Democratic areas. Alaska is also still counting votes, but is expected to fall into Trump’s lap.
On Wednesday evening the Trump campaign filed a suit in Georgia, “to require all Georgia counties to separate any and all late-arriving ballots,” according to a campaign statement.
Efforts to halt counting
Meanwhile, the announcement of state-level lawsuits by the Trump campaign illuminates what appears to be a patchwork strategy to challenge the election results.
The campaign is arguing ballot-counting should be paused in some states because it has not been given close enough access to view the counting operations. In Pennsylvania, for instance, the campaign is arguing that poll workers forced Trump’s election observers to stay eight metres (25 feet) away.
Trump 2020 deputy campaign manager Justin Clark noted in a statement that the campaign was “suing to temporarily halt counting until there is meaningful transparency and Republicans can ensure all counting is done above board and by the law”.
Bill Stepien, the campaign’s manager, argued the campaign wanted increased access to counting operations in Michigan and is demanding “to review those ballots which were opened and counted while we did not have meaningful access,” according to another statement the campaign issued.
Trump’s team has previously sued to halt the counting of mail-in ballots in Nevada asking for the same “meaningful” observation, but the state Supreme Court has denied the suit.
The Trump campaign has also alleged the Pennsylvania Secretary of State Kathy Boockvar inappropriately extended the amount of time voters have after the election to show their identification if they did not show it when they voted. The state requires first-time voters to present ID to cast a ballot.
A Republican congressional challenger in Pennsylvania filed another challenge to keep a few dozen ballots in one county from being counted because they had been “cured,” meaning election officials contacted the voters after the ballot was cast to give them an opportunity to fix an error on the original document. A state judge received the case with suspicion.
Brian C Kalt, a law professor at Michigan State University said he would not be surprised to see more cases like these before the election results are finalised because there is no down side for Trump.
“If he’s behind, it’s in his interest to try anything. He’s got nothing to lose wherever there’s a potential for changing votes, even if he doesn’t know what to change,” Kalt said. “If he does nothing, you’re losers. So go out there, create uncertainty, throw things at the wall, maybe something will stick.”
One more remedy may exist: A good old-fashioned recount.
But experts say recounts are unlikely to move the needle because they rarely change results very much.
In Wisconsin, Biden was up with 49.4 percent of the vote to Trump’s 48.8 percent, as of Wednesday evening. That puts Trump well within his legal right to ask for a recount because the state allows candidates to do so when they are within one percentage point of their opponent.
Trump’s campaign also could ask for a recount in Michigan, where Biden is up by more than a percentage point because that state allows candidates to ask for a recount as long as they pay for it and can prove they have a reasonable chance of emerging victorious.
But the problem for Trump is not really about the percentages. It is the raw vote totals.
As of Wednesday evening, Biden was up by about 20,000 votes in Wisconsin and almost 75,000 in Michigan. A recount reversing totals like that would be unprecedented, according to John Pirich, the lawyer who represented Trump’s campaign in a 2016 Michigan recount case. At the time, Trump protested against a recount, which was asked for by Green Party candidate Jill Stein.
In 2016, Trump added 131 votes to his Wisconsin vote total after a recount there and had lost 102 votes to then-Democratic contender Hillary Clinton in a 2016 Michigan recount, before the state Supreme Court halted it.
“I’ve been doing recounts since 1972,” Pirich said. “Recounts change, you know, five, 10 and 15 votes in most jurisdictions. In a race like this, where you’ve got over five million votes [in Michigan], there’d be a 150-vote change.”
And there is no guarantee a recount challenging potentially incorrect ballots would be good for the Trump campaign, he added. In 2016, 15 absentee ballots out of 100,000 were thrown out after a partial 2016 recount in Nevada, with losses for both parties.
“What’s good for the goose is good for the gander. Typically, if mistakes are made, or there are incorrect applications of the count, they tend to wash out or get pretty close to washing out,” he said. “The reality is most recounts basically mirror the election night or the following day results to a very, very high percentage.”