US Election 2020: Does Donald Trump have a legal case? Jury is out
As key battleground states seemed to flip Blue in favour of Democratic presidential candidate Joe Biden, President Donald Trump filed lawsuits in Michigan, Pennsylvania and Georgia and asked for a recount in Wisconsin. He later tweeted on Thursday, “All of the recent Biden claimed States will be legally challenged by us for Voter Fraud and State Election Fraud.” While he offered no proof, his decision to go to court is not unprecedented. In 2000, George W Bush and Al Gore also moved the Supreme Court to settle a recount dispute.
An FAQ on the issue:
He is losing, and states which were still counting ballots, such as Wisconsin, Michigan and Pennsylvania will decide the winner. But Trump knew that more than two-thirds of the remaining ballots were likely to be for Biden.
The first barrier is procedural. No one, including the US president, can directly file a case with the Supreme Court. The case must first go through a lower federal court or be taken up by a state Supreme Court. Only after those courts have considered a case can the higher court take it up. The Supreme Court can adjudicate directly if it’s a case between state governments or if a foreign envoy is involved, which is not the case here.
The 2000 case pertained to a matter of a recount of undervotes in Florida. Neither candidate was asking anyone to stop counting or voting. Democrat Al Gore argued that Florida voting machines had wrongly disqualified 61,000 ballots and wanted a recount in four counties. He went to Florida state Supreme Court, which agreed to the recount. Only after it passed judgment did Bush, his Republican rival appeal in the US Supreme Court, which said Florida’s patchwork of rules — each county had different criteria to disqualify ballots — violated the constitutional clause that all votes should be treated equally and there wasn’t enough time to synchronise all the rules. The recount never happened.
It has answered that by staying silent. Trump has almost no legal case for saying counting after Election Day is illegal. Under Article II of the US Constitution, each state governments gets to decide how to administer its elections. The federal government lays down general principles like non-discrimination and deadlines but implementation is left to states. All states allow ballots to be counted after election, through absentee ballots. One group who would be disenfranchised otherwise: US military personnel based away from home.
US federal law lays down a deadline of 35 days after Election Day — December 8 this year — after which counting must end. Every state has deadlines within this limit. Pennsylvania’s deadline is November 6. Nearly every US constitutional expert has noted that the US judiciary has never intervened to stop the counting of a ballot that has been cast. It is an unwritten principle that no bench is likely to break. Conservative judges are, after all, conservative. A bench can later decide if certain ballots should have been disqualified.
Last year, the Pennsylvania legislature passed a law saying postal ballots that reached after 8pm on election day should be disqualified. The state Supreme Court overruled it, saying that because of the pandemic, postal ballots postmarked up to 8 pm should be counted but counting must end by Friday.
Republicans tried twice to get the ruling struck down. The US Supreme Court declined, saying it lacked time but reserved the right to consider the matter.